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Introduction: Religious Freedom and The Regulatory State . . . . . . . . .
I. Why Accommodate Religious Freedom . . . . . . . . . . . . . . . . . . . .
A. Textual Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Protection of Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Identity and Fundamental Interests . . . . . . . . . . . . . . . . . . .
1. Analogies: Same-Sex Couples’ Claims and
Establishment Clause Claims . . . . . . . . . . . . . . . . . . . . .
a. Same-Sex Couples’ Claims . . . . . . . . . . . . . . . . . . .
b. Establishment Clause Claims . . . . . . . . . . . . . . . . .
2. Religious Freedom Beyond Churches . . . . . . . . . . . . . .
II. The Boundaries of Accommodations . . . . . . . . . . . . . . . . . . . . . .
A. General Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Hobby Lobby and Its Limits . . . . . . . . . . . . . . . . . . . . . . . . .
1. For-Profits and Non-Profits After Hobby Lobby . . .
2. Anti-Discrimination Claims After Hobby Lobby . . . .
III. The Problem of “Third-Party Harms” . . . . . . . . . . . . . . . . . . . . .
A. Harms and Compelling Interests . . . . . . . . . . . . . . . . . . . . . .
1. Immediacy and Severity of the Harm . . . . . . . . . . . . . .
2. Nature of the Claimant and Claimant’s Interest . . . .
3. Likelihood that the Harm Will Repeat and
Accumulate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Alternative Means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Establishment Clause Limits on Accommodation: Why
They Should Not Be Strict . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Historical/Theoretical Foundations . . . . . . . . . . . . . . . .
3. Deference to Legislative Judgments . . . . . . . . . . . . . . .
IV. Summary: How Accommodation Differs from Lochner . . . . . .
A. Accommodation as an Incremental Exception to
Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Accommodation’s Textual Legitimacy (Constitutional and
Statutory) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. The Qualified Use of Market Logic in Accommodation .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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140
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RELIGIOUS ACCOMMODATION AND
THE WELFARE STATE
THOMAS C. BERG*
* James L. Oberstar Professor of Law and Public Policy, University of St. Thomas
School of Law (Minnesota). This paper grows out of the author’s presentation at the
conference “Religious Accommodation in the Age of Civil Rights,” at Harvard Law
School, April 5, 2014. Thanks to the conference organizers—Mark Tushnet, Nomi
Stolzenberg, and Doug NeJaime—for inviting me, to the participants for questions and
comments, and to Michael Blissenbach and Jay Hinner for prompt and effective research
assistance.
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INTRODUCTION: RELIGIOUS FREEDOM
AND THE
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REGULATORY STATE
The Hobby Lobby1 litigation was a perfect storm. When for-profit
closely held businesses raised religious objections to the federal government’s mandate to cover contraception in employees’ health insurance, the
result was a cultural whirlwind formed by the heated interaction of several
volatile elements: contraception, alleged abortion of embryos, the rights of
corporations, and the furious general debate over the Affordable Care Act.2
Mixed in too—and perhaps giving the storm its overall shape—were recurring debates about how far religious freedom should extend in a complex
modern society highly regulated by an active state.
The Affordable Care Act and the employer mandate to cover contraception rest on the key premises of the welfare state: that active government,
through the regulation of economic activity and the provision of benefits,
can increase human freedom.3 On the other side of the debate, the staunchest
opponents of the contraception mandate, most notably the Republican Party,
have not merely raised objections of religious conscience. They oppose the
entire Affordable Care Act as “the high-water mark of an outdated liberalism, the latest attempt to impose upon Americans a euro-style bureaucracy
to manage all aspects of their lives.”4
The contraception litigation thus reflects, and may accelerate, a trend in
which Americans’ divisions over economic regulation reinforce their divisions over cultural matters. At least in the most prominent public rhetoric,
we see fewer cross-cutting disagreements, and more that line up so as to
harden the divisions. If Americans further separate into religious conservative opponents of regulation and secular, progressive proponents of regulation, polarization is likely to become increasingly unhealthy.5 Therefore, it is
valuable to pursue projects cutting across the divide. One such project is to
1
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119
(2010) (codified as amended in scattered sections of the U.S.C.).
3
For example, Kathleen Sebelius, Secretary of Health and Human Services during
most of the controversy, emphasized that the mandate promoted women’s freedom by
“put[ting] women and their doctors, not insurance companies or the government, in
charge of health care decisions.” Press Release, U.S. Dep’t of Health & Human Servs.,
Health Care Law Gives Women Control Over Their Care, Offers Free Preventive Services to 47 Million Women (July 31, 2012), http://www.hhs.gov/news/press/2012pres/07/
20120731a.html, archived at http://perma.cc/765L-FXWZ. See also Hobby Lobby, 134 S.
Ct. at 2789–90 (Ginsburg, J., dissenting) (arguing that by mandating employer coverage
of preventive services, “Congress left health care decisions—including the choice among
contraceptive methods—in the hands of women, with the aid of their health care
providers.”).
4
Republican Platform We Believe in America, GOP.COM, http://www.gop.com/2012republican-platform_renewing/#Item6, archived at http://perma.cc/RH8B-YD68 (supporting “the ability of all organizations to provide, purchase, or enroll in healthcare coverage consistent with their religious, moral or ethical convictions without discrimination
or penalty.”).
5
On polarization, see generally BILL BISHOP, THE BIG SORT: WHY THE CLUSTERING
OF LIKE-MINDED AMERICA IS TEARING US APART (2008).
2
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explain how one can affirm the active, regulatory state and still support giving religious freedom a wide scope, including in areas of public life and civil
society in which the State plays a prominent role.
I began this project in a previous article that argued for strong freedom
for religious organizations based on progressive premises rather than premises hostile to government regulation in general.6 This Article continues the
project by discussing and defending government accommodation of religious objectors as a valuable strategy for protecting religious freedom in the
active, regulatory state.
Problems concerning religious freedom are just one example of the
more general problem of protecting constitutional rights and interests in an
activist state. Courts have faced this tension since the New Deal, when they
largely gave up limiting economic regulation under the Commerce Clause or
liberty of contract. Instead, as the Supreme Court signaled in 1938 in footnote four of United States v. Carolene Products Co.,7 courts assumed general governmental power over the economy and enforced other provisions
that affirmatively barred certain government actions: discrimination against
discrete and insular minorities, restrictions on speech and on voting, restrictions on rights specifically enumerated in the first ten amendments, and so
forth.8
Unquestionably, the expansion of social-welfare regulation creates new
conflicts with the free exercise of religion.9 And as I will argue in greater
detail below, religious freedom fits within at least two of the categories
above: it is specifically enumerated and it often involves vulnerable minorities. With religious freedom, the strategy to limit the increasing reach of
government took the form of accommodations for religion. An accommodation, or exemption, is a court ruling or statutory provision declaring that
otherwise valid regulations should not be applied in ways that significantly
interfere with the religious freedom of organizations or individuals.10 The
6
Thomas C. Berg, Progressive Arguments for Religious Organizational Freedom:
Reflections on the HHS Mandate, 21 J. CONTEMP. LEGAL ISSUES 279, 284–86 (2013)
[hereinafter Berg, Progressive Arguments].
7
304 U.S. 144, 152 n.4 (1938).
8
See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888–1986, at 244 (1990) (“No longer would the Court be much concerned with the controversies over social and economic legislation . . . [but the Carolene
Products footnote] suggest[ed] that the presumption of constitutionality might have less
force with respect to measures affecting specific guarantees . . . [, thus setting] the
Court’s agenda for the next fifty years.”); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 122 (Sanford Levinson rev., 2d ed. 1994) (describing the Court’s shift from
“the business-government relationship” to “civil rights” i.e. “the relationship between
the individual and the government”).
9
See, e.g., Richard A. Epstein, Religious Liberty in the Welfare State, 31 WM. &
MARY L. REV. 375, 375–76 (1990).
10
See, e.g., Michael W. McConnell, Accommodation of Religion: An Update and a
Response to the Critics, 60 GEO. WASH. L. REV. 685, 686 (1992) (defining “accommodation” as provisions that “have the purpose and effect of removing a burden on, or facilitating the exercise of, a person’s or an institution’s religion”—that is, of “remov[ing]
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key decision requiring an accommodation under the First Amendment’s Free
Exercise Clause was Sherbert v. Verner,11 issued in 1963 by the Warren
Court and written by its intellectual leader, William Brennan. Sherbert held
that a Seventh-day Adventist woman could not be denied unemployment
benefits because of her refusal to work on Saturday, her Sabbath, and that
the government had to justify substantial burdens on religious freedom under
strict scrutiny.12 Courts expanded these mandatory accommodations in other
cases, including Wisconsin v. Yoder, where the Supreme Court accommodated an Amish objection to compulsory schooling after age fourteen.13 And
legislatures have also accommodated religion through scores of provisions in
multiple areas of regulation.14 In addition to statutory accommodations specific to various contexts, legislatures have adopted general religious freedom
statutes that protect religious conduct from “substantial burdens”—even
through the application of general laws—unless the application of the burden satisfies strict judicial scrutiny. The Religious Freedom Restoration Act
(RFRA), at issue in Hobby Lobby, imposes this scrutiny on federal laws.15
Similar provisions in nineteen states, and constitutional rulings by state
courts in another twelve, impose similar scrutiny on state and local laws.16
There have been numerous scholarly defenses of religious accommodation.17 This Article presents one particular defense: that accommodation is a
obstacles to the exercise of a religious conviction adopted for reasons independent of the
government’s action”).
11
374 U.S. 398, 409–10 (1963).
12
Id. at 406–07 (requiring the state to show that a compelling interest justified a
“substantial infringement” and “that no alternative forms of regulation would combat
[the problem] without infringing First Amendment rights”).
13
406 U.S. 205, 234 (1972).
14
James E. Ryan, Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 VA. L. REV. 1407, 1445–47 (1992) (estimating that “religious
exemptions exist in over 2,000 [federal and state] statutes”).
15
Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (2012).
16
See Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. ILL. L.
REV. 839, 844–45 nn. 22–23 & 26.
17
For recent defenses of strong free exercise protections, see generally JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? ch. 3 (1996) (doctrinal and jurisprudential defenses);
JOHN T. NOONAN, THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM (1998) (originalist and doctrinal defenses); Alan E. Brownstein, Justifying
Free Exercise Rights, 1 U. ST. THOMAS L.J. 504 (2003) (doctrinal and jurisprudential
defenses); Douglas Laycock, Religious Liberty as Liberty, 7 J. CONTEMP. LEGAL ISSUES
313 (1996) (originalist and doctrinal defenses); Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990)
(originalist defense); Michael Stokes Paulsen, The Priority of God: A Theory of Religious
Liberty, 39 PEPP. L. REV. 1159 (2013) (originalist and doctrinal defenses). My own contributions on this score include Thomas C. Berg, Can Religious Freedom Be Protected As
Equality?, 85 TEX. L. REV. 1185 (2007) (historical and doctrinal defenses). For defenses
of protection for religious institutions in particular, see generally PAUL HORWITZ, FIRST
AMENDMENT INSTITUTIONS ch. 7 (2013) (defenses of church autonomy); Richard W. Garnett, “The Freedom of the Church”: (Towards) An Exposition, Translation, and Defense,
21 J. CONTEMP. LEGAL ISSUES 33 (2013) (defense of the freedom of the church); Frederick M. Gedicks, Toward a Constitutional Jurisprudence of Religious Group Rights, 1989
WIS. L. REV. 99 (1989) (defense of protection of religious groups); Douglas Laycock,
Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations
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valuable and flexible resource for maintaining religious freedom in the regulatory state without undercutting the foundations of modern regulation. Accommodation of religion, whether constitutionally compelled or statutory,
provides the means for balancing welfare-state regulation and religious freedom. It allows religious exercise to remain free while the regulation accomplishes its goal in the large majority of cases. Accommodation tempers
regulation without undoing it: indeed, accommodation often increases regulation’s credibility, or its likelihood of passage, by removing objections to it
based on religious conscience.
This Article begins, in Part I, by arguing why religious freedom is important enough to merit strong protection, relying on the kinds of arguments
that served as constitutional priorities for the post-New Deal Court. Part II
then turns to the proper scope of accommodation in a state that is active in
regulation but that also gives religious freedom serious weight. This Part
focuses in particular on the Hobby Lobby decision, arguing that although it
correctly gives religious freedom strong weight and recognizes religiousfreedom claims by for-profit businesses, it should not lead to wide-ranging
exceptions to commercial regulation.
Part III then integrates these observations about the scope of accommodation into a general framework for assessing when accommodation of religious conduct should be denied in order to prevent harms to others. This Part
first discusses the considerations that should inform the determination of
whether preventing a given harm constitutes a “compelling interest,” justifying limiting religious freedom under RFRA and similar statutes. It then
turns to arguments that “harms to others” mean that an accommodation is
not only not mandated by religious freedom but is actually forbidden by the
First Amendment’s Establishment Clause. I argue that any such Establishment Clause restrictions should be modest and leave ample room for
accommodations.
Finally, Part IV recaps and summarizes this Article’s themes by distinguishing religious accommodation—a limited challenge to the regulatory
state—from the far more fundamental challenges that succeeded in the era of
Lochner v. New York18 but were abandoned after 1937. Religious accommodation is different from Lochner in several ways: it places less extensive
limits on regulation; it rests on firmer textual foundations; and although it
relies in part on the workings of markets to show that religious freedom will
not cause unacceptable harm, it does not treat the market as the natural or
conclusive mechanism. The reliance on markets, though important, is qualified and instrumental, for the purpose of giving reasonable room to religious
freedom while not undercutting government regulatory power in general. For
and the Right to Church Autonomy, 81 COLUM. L. REV. 1373 (1981) (defense of church
autonomy).
18
198 U.S. 45 (1905).
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these reasons, religious accommodation can coexist with—indeed, it plays
an important positive role in—a well-functioning regulatory State.
I. WHY ACCOMMODATE RELIGIOUS FREEDOM
As later parts of this Article aim to show, we have ample mechanisms
for calibrating the balances between religious liberty and other interests, and
reducing the costs to others and society from any given level of religiousliberty protection. But we cannot eliminate the costs altogether. No theory
can avoid weighing the competing interests to some extent. Therefore, an
initial question is whether religious freedom is important enough to justify
some harm to government interests, justify the search for less restrictive
ways of achieving those interests, and justify sometimes difficult line-drawing between acceptable and unacceptable costs. Unless religious freedom is
viewed as quite important, decision-makers will accept these costs as sufficient to override it, or they will define its scope narrowly enough to reach
the same result.
That would be a serious mistake. We should treat religious freedom as
quite important and give it broad scope, whether through constitutional or
statutory provisions. Although there are many ways to argue for this proposition, my argument here is that religious freedom’s importance is shown
by the various rationales most prominent in modern, post-New Deal, constitutional doctrine. These rationales include—but are not limited to—the factors in Carolene Products footnote 4.19
In footnote 4, of course, the Court reemphasized the presumption that
government regulation was constitutionally permissible, a presumption
newly strengthened the previous year, 1937, by the change of course approving New Deal legislation.20 But the Court went on to discuss factors that
might override the presumption. Among other things, the Court said
“[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which
are deemed equally specific when held to be embraced within the Fourteenth.”21 The Court declined to decide whether “similar considerations
[might] enter into the review of statutes directed at particular religious, or
national, or racial minorities,” particularly those that are “discrete and insular,” but mentioned those groups specifically and left open the possibility
that such circumstances might call for a “more searching judicial inquiry.”22
By focusing on these features, the Court attempted to provide a new “firm
ground” for constitutional review after the Lochner era—a “new constitu19
United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 398–400 (1937).
Carolene Prods., 304 U.S. at 152 n.4.
22
Id. at 153 n.4 (citations omitted).
20
21
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tional rhetoric . . . that self-consciously recognized that the era of laissezfaire capitalism had ended.”23
Just as clearly, however, the Carolene Products approach cannot explain the whole set of constitutional rights that have become most important
after the New Deal. Beginning with contraception rights in Griswold v. Connecticut,24 the Court embarked on a new project of defining rights not specified in the first ten amendments, primarily rights of personal freedom in
matters involving intimate relationships. The Court’s explanation for its
choices in singling out such implied liberties has varied. Sometimes it emphasizes that it will only protect rights “deeply rooted in [the] Nation’s history and tradition[s]” and “careful[ly] descri[bed]” so that traditions show
“concrete examples” recognizing that liberty.25 Other times, however, it has
more broadly found rights in “matters . . . fundamentally affecting a person
[such as] the decision whether to bear or beget a child”;26 the “most intimate and personal choices a person may make in a lifetime, choices central
to personal dignity and autonomy”;27 and “basic personal relations” such as
the right to enter into civil marriages (whether as a matter of equality or
liberty).28
It is not my purpose here to evaluate the strength, absolute or relative,
of these various grounds for constitutional limitations on government regulations. Under all of the grounds, religious freedom fits comfortably within the
rights that have received the strongest protection since the New Deal. First,
religious freedom has textual status that reflects a longstanding societal commitment to its importance. Second, it is often asserted by groups who are
subject to prejudice at worst and ignorance or insensitivity at best. And finally, it is as central to individuals’ identity and dignity as any of the personal rights strongly protected in the modern constitutional tradition.
A. Textual Status
First, free exercise of religion has an elevated place in the modern constitutional framework sketched above. It ranks among the rights specifically
enumerated in the first ten amendments. In that and other ways, it stands
among the rights that the Supreme Court undertook to protect at the very
23
Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 714
(1985).
24
381 U.S. 479, 484–86 (1965).
25
Washington v. Glucksberg, 521 U.S. 702, 720–22 (1997) (rejecting substantive due
process challenge to laws against assisted suicide).
26
Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (quoting Eisenstadt v.
Baird, 405 U.S. 438, 453 (1972)).
27
Id.
28
United States v. Windsor, 133 S. Ct. 2675, 2694 (2013) (establishing the right to
equal federal treatment of state-recognized marriages); see also Zablocki v. Redhail, 434
U.S. 374, 386 (1978) (protecting the right to marry because it is “the decision to enter the
relationship that is the foundation of the family in our society”).
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same moment—1937 and its aftermath—that it effectively recognized a
larger role for the government in a complex society. At the dawn of modern
rights jurisprudence, the New Deal Justices identified four freedoms—free
exercise of religion and freedom of speech, press and assembly—as having a
“preferred place,”29 meaning they were “susceptible of restriction only to
prevent grave and immediate danger to interests which the State may lawfully protect.”30 Needless to say, the New Deal Justices did not invent that
status for religious freedom. Although the religious freedom tradition in
America is complex—marked by contention and blemished by notable failures to give respect and toleration—it nevertheless has been a powerful
commitment that has helped make us among the world’s most religiously
diverse, and religiously active, nations.31
It is true that the Court held in Employment Division v. Smith that accommodations usually are not required by the Free Exercise Clause.32 But
Smith is not the last word on required accommodations: the Court made that
clear in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,
where it held that Smith had no application to “government interference with
an internal church decision that affects [the religious organization’s] faith
and mission.”33 In any event, statutory accommodations still serve the values
of protecting religious liberty and religious minorities, as Smith itself recognized in suggesting that such provisions were “permitted [and] even . . .
desirable.”34
Religious freedom is hardly the only constitutional right that legislatures can or should protect in circumstances when they’re not constitutionally compelled to do so. For example, government discrimination based on
race, sex, or other prohibited factors violates the Fourteenth Amendment, the
Court says, only when the government does it in the text of a law or otherwise intentionally.35 The same rule applies to allegations that a statute violates the Fifteenth Amendment by disproportionately restricting the vote of
29
Thomas v. Collins, 323 U.S. 516, 530 (1945).
Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (referring to all four freedoms
although deciding the case based on freedom of speech). See also Thomas, 323 U.S. at
530 (stating that only “the gravest abuses, endangering paramount interests, give occasion for permissible limitation” of the four freedoms); John D. Inazu, The Four Freedoms
and the Future of Religious Liberty, 92 N.C. L. REV. 787, 801–07 (2014) (discussing the
place of religious liberty among the “preferred freedoms” in the 1930s and 1940s).
31
See generally DIANA L. ECK, A NEW RELIGIOUS AMERICA: HOW A “CHRISTIAN
COUNTRY” HAS BECOME THE WORLD’S MOST RELIGIOUSLY DIVERSE NATION (2001)
(describing American religious diversity); see also ROBERT D. PUTNAM AND DAVID E.
CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES US 8 (2010) (“The
United States ranks far ahead of virtually all other developed nations in terms of all three
Bs of religiosity [behaving, belonging, and believing].”).
32
494 U.S. 872, 879–81 (1990).
33
132 S. Ct. 694, 707 (2012).
34
494 U.S. at 890 (“[A] society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as well.”).
35
Pers. Adm’r v. Feeney, 442 U.S. 256, 272 (1979); Washington v. Davis, 426 U.S.
229, 239 (1976).
30
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members of a racial group.36 But Congress has expanded statutory rights
beyond the narrow demands of the Constitution. Title VII requires defendants, including state and local governments, to show that a disparate impact
on race or sex is justified by “business necessity.”37 And the Voting Rights
Act allows challenges to laws that dilute minority voting strength, even if
unintentionally, based on a totality of the circumstances test.38
In any event, RFRA and its state counterparts direct courts to order
exemptions in appropriate cases.39 RFRA’s overwhelming passage—by
voice vote without objection in the House and by 97-3 in the Senate40—itself
indicates the strength of the American tradition of accommodating religious
freedom.
The activist State can run afoul of statutory rules by unintentional discrimination. It can also impose unacceptable, even though unintended, burdens on religious freedom. It is justified to prevent those burdens through
either specific accommodations or general religious freedom legislation.
B. Protection of Minorities
Carolene Products includes “religious minorities” among those needing protection from regulation, and rightly so. Many claimants for religious
accommodations are identifiable minorities subject to prejudice and indifference. Muslims, Sikhs, and Native Americans fit easily into this category.
And sometimes they must be protected by accommodations, judicial or statutory, rather than merely rules of formal neutrality or non-discrimination
like that of Smith. Generally applicable rules not targeted at religion may
not, in their enactment, typically reflect prejudice toward religious minorities
whose beliefs happen to conflict with the rule. But they certainly reflect
ignorance concerning minorities; and if the conflict is known, a decision not
to accommodate can easily reflect unsympathetic indifference or even
prejudice.
State versions of RFRA have given minority religions significantly
stronger protection than Smith would. Christopher Lund, probably the lead36
Rogers v. Lodge, 458 U.S. 613, 617–18 (1982).
42 U.S.C. § 2000e–2(k)(1)(A)(i) (2012) (codifying the standard of Griggs v. Duke
Power, 491 U.S. 424, 429–30 (1971)); see also 42 U.S.C. § 2000e(b) (2012) (defining
covered “employer” in a way that includes most state and local agencies, but allocating
claims against federal government to civil-service rules).
38
Voting Rights Act Amendments of 1982, §§ 2–3, 96 Stat. 131, 131–34 (amending
42 U.S.C. § 1973); Thornburgh v. Gingles, 478 U.S. 30, 43 (1986).
39
See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014)
(holding that RFRA requires exemptions pursuant to compelling interest test); Eugene
Volokh, Religious Exemption Law Map of the United States, VOLOKH CONSPIRACY (July
9, 2010, 5:36 PM), archived at https://web.archive.org/web/20100715073724/http://
volokh.com/2010/07/09/religious-exemption-law-map-of-the-united-states/ (laying out
same standard for state RFRAs).
40
Peter Steinfels, Clinton Signs Law Protecting Religious Practices, N.Y. TIMES,
Nov. 17, 1993, at A18.
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ing expert on state RFRAs, has catalogued a number of cases in which they
have protected religious minorities.41 These include, for example, “the Native American student who got the right to wear his hair long in A.A. v.
Needville Indep. School Dist.”; 42 “the Santeria folks who got to continue
their religious rituals sacrificing animals in Merced v. Kasson”; 43 and the
“Jehovah’s Witness who got a bloodless liver transplant that was necessary
to keep her alive in Stinemetz v. KHPA.” 44
Other religious-freedom claimants do not easily fit as “discrete and insular” minorities. Christian traditionalists, for example, do not immediately
stand out as different, and they often integrate into society and participate in
politics.45 But there is still a good prima facie case for accommodating them.
Minority status should not be seen as an all-or-nothing matter. While some
religious groups are relatively powerless minorities everywhere, for others
the status varies according to context. Traditional evangelicals are a majority
in some parts of the country and often act in the insensitive way common to
majorities. But they are a minority in other places—the places most likely to
adopt legislation that penalizes them for acting according to their beliefs.46
They are also a minority, with highly unpopular views, in a great many public educational institutions that likewise exercise state power.47
Polls over the last quarter century consistently show significant negative views toward traditionalists: 45% of Americans in 1993 viewed “religious fundamentalists” unfavorably, and in 1989, 30% would not want to
have them as neighbors.48 A recent poll commissioned by the Human Rights
Campaign, a leading pro-marriage-equality group, finds that likely 2016 voters now view evangelical Christians substantially less favorably than they
view gays and lesbians: evangelicals were viewed unfavorably by 28%, gays
and lesbians by only 18%.49
41
See Christopher C. Lund, Religious Liberty After Gonzales: A Look at State
RFRAs, 55 S.D. L. REV. 466, 481–82 (2010).
42
Posting of Christopher Lund, [email protected], to [email protected],
(Mar. 11, 2014) [hereinafter Lund Post] (citing 611 F.3d 248, 272–73 (5th Cir. 2010)),
archived at http://perma.cc/E93R-KWSV (titled RE: Letter opposing Mississippi RFRA).
43
Lund Post (citing 577 F.3d 578, 595 (5th Cir. 2009)).
44
Lund Post (citing 252 P.3d 141, 161 (Kan. Ct. App. 2011)).
45
See generally CHRISTIAN SMITH, AMERICAN EVANGELICALISM: EMBATTLED AND
THRIVING (1998).
46
See, e.g., Thomas C. Berg, Minority Religions and the Religion Clauses, 82 WASH.
U. L.Q. 919, 945 (2004) (noting varying patterns of majority-minority status, and the
repeated efforts of New York-area public school officials “to exclude evangelical groups
from meeting in the schools on the same terms as other voluntary groups”).
47
See id. at 947–48 (describing a university’s actions excluding evangelical students
from programs while accommodating other claims, accompanied by statements that the
objectors, for example, “should simply not attend the University”).
48
Douglas Laycock, State RFRAs and Land Use Regulation, 32 U.C. DAVIS L. REV.
755, 760 (1999) (citing, respectively, GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC
OPINION 1993, at 75–76, 78 (1994); and GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC
OPINION 1989, at 63, 67 (1990)).
49
Nikki Schwab, Poll: Gay People More Popular than Evangelicals, U.S. NEWS &
WORLD REP., Mar. 27, 2014, http://www.usnews.com/news/blogs/washington-whispers/
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A court should not strike down a law simply because there is antipathy
toward the group the law affects. The government may have a legitimate
justification, perhaps the same justification on which the antipathy rests. But
the existence of antipathy should be an alert to look at the law more closely.
In previous work, Douglas Laycock and I have compared religious conservatives with gays and lesbians and argued that both groups should be
protected. Because the two groups “are each viewed as evil by a substantial
portion of the population, each is subject to substantial risks of intolerant and
unjustifiably burdensome regulation.”50 As Alan Brownstein has cogently
explained, the danger in such situations is that government will “focus on
one characteristic of a person—their race, religion, national ancestry or sexual orientation—and act as if that one attribute determines the value of the
person.”51 Civil liberties protections are meant for people who are vulnerable to such reductionist dismissals of their interests, and that includes religious traditionalists as well as same-sex couples.
C. Identity and Fundamental Interests
Finally, protection for a religious group should not depend on whether
it qualifies as a discrete and insular minority. Even when they are not the
target of discrimination, religious believers and organizations should be protected against substantial government pressure to violate their beliefs. Such
pressure inflicts significant harm on religious adherents because religion is
such an important component of identity.52 Even setting aside its explicit
protection in the text of the Constitution, religion is surely as central to individuals’ identity as any of the personal liberties protected in modern constitutional doctrine. Religious decisions “fundamentally affec[t]” a person and
are “central to personal dignity and autonomy.”53 As Alan Brownstein has
put it:
For serious believers, religion is one of the most self-defining
and transformative decisions of human existence. Religious beliefs
affect virtually all of the defining decisions of personhood. They
influence whom we will marry and what that union represents, the
2014/03/27/poll-gay-people-more-popular-than-evangelicals, archived at http://perma.cc/
9YHX-7EMJ.
50
Douglas Laycock & Thomas C. Berg, Protecting Same-Sex Marriage and Religious Liberty, 99 VA. L. REV. ONLINE 1, 5 (2013), http://www.virginialawreview.org/sites/
virginialawreview.org/files/LaycockBerg.pdf, archived at http://perma.cc/BA6Z-GS4N.
51
Alan Brownstein, Gays, Jews, and Other Strangers in a Strange Land: The Case
for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples
to Marry, 45 U.S.F. L. REV. 389, 406 (2010) (citation omitted).
52
I develop this argument at greater length in Berg, Progressive Arguments, supra
note 6, at 300–01, 305–06.
53
See supra notes 26–28 and accompanying text (quoting Planned Parenthood v.
Casey, 505 U.S. 833, 851 (1992) and United States v. Windsor, 133 S. Ct. 2675, 2694
(2013)).
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birth of our children, our interactions with family members, the
way we deal with death, the ethics of our professional conduct,
and many other aspects of our lives. Almost any other individual
decision pales in comparison to the serious commitment to religious faith.54
Moreover, for serious believers—the ones who are likely to persist with
conscientious objections in the face of legal risk—religious identity is not
only important but is also wide-ranging and made up of interconnected beliefs and practices. Christopher Eisgruber and Lawrence Sager describe religious belief and practice as “important components of individual and
group identity,” because “[r]eligious affiliation typically implicates an expansive web of belief and conduct”—a “comprehensive” web rather than a
set of “discrete propositions or theories”—and “[i]n a variety of ways the
perceived and actual stakes of being within or without these webs of belief
and membership can be very high,” such as “leading a life of virtue or a life
of sin,” or “fulfilling or squandering one’s highest destiny.”55 Eisgruber and
Sager employ this description in an Establishment Clause context; they are
explaining why government adoption of a particular religious identity causes
distinctive harms to persons outside that faith.56 But the point also applies to
the freedom to practice one’s faith: the free exercise of religion. Being forced
to act in a way contrary to one’s deepest and most comprehensive beliefs can
have broad repercussions, making the believer feel severed from the entire
web of beliefs. The same holds by extension for religious organizations,
which may be affected greatly by departing from beliefs and practices that
tie them to the faith that inspires their workers, volunteers, and donors.57
1. Analogies: Same-Sex Couples’ Claims and Establishment Clause
Claims
To gauge the importance of freedom of religious exercise, as well as its
proper scope, it can help to compare it in more detail to other constitutional
claims: for example, those made by same-sex couples and those made by
religious minorities challenging government-sponsored prayers as establishments of religion.
54
Alan Brownstein, The Right Not to Be John Garvey, 83 CORNELL L. REV. 767, 807
(1998) (reviewing JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? (1996)).
55
CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND
THE CONSTITUTION 61, 125–26 (2007).
56
See id. at 61–62.
57
For elaboration of these points, see Berg, Progressive Arguments, supra note 6, at
300–06.
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a. Same-Sex Couples’ Claims
Although claims of same-sex couples frequently conflict with those of
traditional religion, they in fact have several parallels, which have been elaborated by scholars of gay, lesbian, and bisexual (GLB) rights58 and of religious freedom.59 Both sexual orientation and religion are important to
personal identity, and consequently either impossible to change or very difficult to change without substantial costs to one’s sense of integrity. Accordingly, the State should not tell same-sex couples, “You can have your
orientation, but don’t act on it”; no state interest is strong enough to justify
such a severe and wide-ranging burden.60 The corresponding mistake in the
context of religious freedom is for the state to tell religious adherents, “You
can have your belief, but don’t act on it.” The believer likewise has an interest in acting in accordance with her identity and deepest commitments, an
interest that should be respected unless there is a strong reason to limit it (in
RFRA’s terms, a “compelling” reason).
Moreover, both same-sex couples and religious believers seek to lead
lives of integrity, consistent with their identity, in civil society, not just in
insular settings. When the State refuses marriage to same-sex couples, it
wrongly tells them, in essence, “Keep your relationship private,” in that the
marriage will not receive the civil recognition and accompanying civil legitimacy that other marriages enjoy. With religious practice, the corresponding
mistake is for the state to tell believers that the scope of their religious freedom is limited to the worship service and the house of worship and does not
extend to the ways they act on their beliefs in faith-based service organizations and in their businesses. That wrongly says, in essence, “Keep your
faith to the church.”
The analogies between GLB rights and religious freedom cannot be dismissed on the basis that same-sex couples seek equality while religious objectors seek a distinctive liberty from regulation.61 There is no good reason to
privilege equality over liberty; both are central features of the constitutional
tradition. Claims of liberty may be inherently more qualified, because the
limits of freedom must always be defined as against social interests and the
rights of others. But that simply means that there should be limits on religious freedom and religious accommodations. It does not detract from the
58
See KENJI YOSHINO, COVERING 168–70 (1996); William N. Eskridge, Jr., A Jurisprudence of “Coming Out”: Religion, Homosexuality, and Collisions of Liberty and
Equality in American Public Law, 106 YALE L.J. 2411, 2416–30 (1997).
59
See Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims
Have in Common, 5 NW. J.L. & SOC. POL’Y 206, 212–24 (2010) [hereinafter Berg,
Claims in Common]; Laycock & Berg, supra note 50, at 4–5. The analysis in this text
paragraph and the next condenses the argument of the two articles above.
60
See, e.g., Lawrence v. Texas, 539 U.S. 558, 583 (2003).
61
I make a fuller set of arguments on this point in Berg, Claims in Common, supra
note 59, at 224–26.
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proposition that religious freedom, as a fundamental liberty, must weigh
heavily in the balance.
b. Establishment Clause Claims
Another instructive comparison on the importance and sensitivity of
religious identity is between Hobby Lobby and the 2013 Term’s other Religion Clause decision, Town of Greece v. Galloway.62 There the Court upheld,
against an Establishment Clause challenge, a town council’s practice of
opening meetings with prayers by invited clergy and others.63 The majority
rejected the plaintiffs’ claims that the pattern of prayers overwhelmingly favored Christianity over other religions and pressured participation by citizens who had to appear before the council for some purpose.64 Justice Kagan
dissented, in an eloquent opinion that opened with praise for the “momentous offering” and “breathtakingly generous constitutional idea” of religious
freedom.65 Much of her dissent focused on the ideal of formal religious neutrality: “when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply
as an American.”66 But Justice Kagan added another point, which has implications for accommodations from formally neutral laws:
[T]he not-so-implicit message of the majority’s opinion—“What’s
the big deal, anyway?”—is mistaken. The content of Greece’s
prayers is a big deal, to Christians and non-Christians alike. A person’s response to the doctrine, language, and imagery contained in
those invocations reveals a core aspect of identity—who that person is and how she faces the world.67
Because religion is “a core aspect of identity,” the Establishment
Clause makes the predicament of the religious dissenter at the council meeting a matter of constitutional concern. And in this respect religion differs
from the wide range of secular views that we expect council members to
express even though others disagree. Therefore, it is unfortunate that the five
Justices in the Hobby Lobby majority rejected the objection to council
prayers in Town of Greece: they should have treated it with seriousness, as
they treated RFRA objections.68 Justice Kagan is right: when Justice Alito
dismissed as “really quite niggling” the claim that the town should have
62
134 S. Ct. 1811 (2014).
Id. at 1815.
64
Id. at 1820.
65
Id. at 1841. (Kagan, J., dissenting).
66
Id.
67
Id. at 1853.
68
For illuminating discussion of the parallels, see Vikram David Amar & Alan E.
Brownstein, Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and
Town of Greece Viewed Side by Side, VERDICT (Feb. 28, 2014), http://verdict.justia.com/
2014/02/28/consistency-treatment-religious-liberty-claims, archived at http://perma.cc/
WQ4V-26AZ [hereinafter Amar & Brownstein, Consistency in Claims].
63
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done more to avoid Christian dominance, he ignored the special sensitivity
of religious differences.69
But the point applies the other way too, to Justice Kagan and the Court’s
“liberal” wing. Much of the argument against Hobby Lobby’s owners, both
on the Court and in the general culture, amounts, in Justice Kagan’s phrase,
to “What’s the big deal, anyway?”70 No one—the argument goes—is forcing
the owners to use contraceptives or alleged abortifacients, or administer
them, or endorse their use.71 Likewise, no one is forcing Catholic institutions
to host or perform same-sex marriages, or endorse them; so what’s the real
impact on religious commitments? One also hears equivalents of the following argument: “What’s so special about religion? People have lots of objections to government policies and don’t get to claim an exemption.”
Justice Kagan’s identification of religious belief as a “core aspect of
identity” helps answer why it is a big deal, and why religious objections to
majoritarian policies are distinctive. The depth and comprehensive nature of
a religious belief, for someone who believes it strongly enough to risk challenging a law, means that the person suffers a serious burden to her integrity
when pressured to act in ways inconsistent with the belief. Using Justice
Kagan’s words again, it matters in Hobby Lobby—as it should have mattered
in Town of Greece—that religious beliefs “speak of the depths of [one’s]
life, of the source of [one’s] being, of [one’s] ultimate concern, of what
[one] take[s] seriously without any reservation.”72
The importance of freedom and integrity on religious matters reveals
other commonalities between the two cases. The Town of Greece majority
said that the town had a formally “nondiscriminatory” policy and Christians
had dominated simply because they had the overwhelming majority of congregations in town.73 The Town of Greece dissenters criticized this formalism
and argued that since several non-Christian houses of worship were just
outside the town’s borders, the council could, and must, do more to achieve
equality among denominations.74 But the dissenters then turned around in
Hobby Lobby and argued that the formal neutrality of a law was sufficient to
69
134 S. Ct. at 1829.
Id. at 1852 n.5 (Kagan, J., dissenting).
71
See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2799 (2014)
(Ginsburg, J., dissenting) (claiming that the companies’ owners were not substantially
burdened because they were not commanded to use, “purchase or provide the contraceptives they find objectionable”); Amar & Brownstein, Consistency in Claims, supra note
68, at 23 (noting that in Hobby Lobby, as in Town of Greece, “opponents of the plaintiffs/
religious claimants seem incredulous, wondering what the religious adherent can possibly
be complaining about.”).
72
Town of Greece, 134 S. Ct. at 1852 (alteration in original) (quoting PAUL TILLICH,
THE SHAKING OF THE FOUNDATIONS 57 (1948)).
73
Id. at 1824 (“So long as the town maintains a policy of nondiscrimination, the
Constitution does not require it to search beyond its borders for non-Christian prayer
givers in an effort to achieve religious balancing.”).
74
Id. at 1840 (Breyer, J., dissenting) (“[I]n a context where religious minorities exist
and where more could easily have been done to include their participation, the town
chose to do nothing.”); id. at 1852–53 (Kagan, J., dissenting).
70
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eliminate any claim by people seeking to act in the economic sphere through
the corporate form.75
The Town of Greece dissenters also were willing to accept case-specific
balancing and narrow judgments in order to distinguish permissible from
impermissible religious elements in public events. Justice Alito, a member of
the majority, was unwilling, warning that “our often puzzling Establishment
Clause jurisprudence” would deter officials from including even permissible
religious elements;76 and Justice Scalia doubtless agreed, since he has long
called the case law on government religious speech incoherent.77 But again,
in Hobby Lobby the roles switched: now it was Justice Ginsburg and the
other Town of Greece dissenters who warned that the decision would put the
Court in the position of “divin[ing] which religious beliefs are worthy of
accommodation, and which are not.”78
This dilemma between slippery slopes and judicial discretion was the
prime reason Smith gave for rejecting constitutionally mandated accommodations.79 But it is no reason for refusing to follow RFRA, which rests precisely on Congress’s determination that courts can and should make casesensitive judgments: Congress found that the compelling-interest test is “a
workable test for striking sensible balances between religious liberty and
competing prior governmental interests.”80 Neither religious accommodations nor religiously themed expressions are amenable to a few simple rules.
But if religious freedom is a sufficiently important and sensitive matter to
justify judicial intervention, then some case-by-case balancing is worth accepting as the cost of permitting that intervention while respecting other
interests.
2. Religious Freedom Beyond Churches
Given the centrality and comprehensiveness of religious identity for the
believer, it cannot be limited solely to relatively insular settings like the
worship service or the house of worship. People have an interest in carrying
their beliefs into public settings and civil society. One recurrent issue involves the religious freedom of faith-based non-profit service organizations
such as schools and social services. In previous work, I’ve argued that these
75
See Hobby Lobby, 134 S. Ct. at 2787–806 (Ginsburg, J., dissenting). Justices
Breyer and Kagan avoided deciding whether for-profit corporations were barred from
asserting religious-freedom claims. Id. at 2806 (Breyer and Kagan, JJ., dissenting). But
by joining in the rest of Justice Ginsburg’s dissent they left serious doubt whether any
claim for an exemption would ever be successful.
76
134 S. Ct. at 1831 (Alito, J., concurring).
77
See, e.g., McCreary County v. ACLU, 545 U.S. 844, 891 (2005) (Scalia, J.,
dissenting).
78
Hobby Lobby, 134 S. Ct. at 2805 (Ginsburg, J., dissenting).
79
See Emp’t Div. v. Smith, 494 U.S. 872, 887 (1990).
80
42 U.S.C. § 2000bb(a)(5) (2012). As the majority put it, the dissent’s “fundamental
objection to the claims of the plaintiffs is an objection to RFRA itself.” Hobby Lobby,
134 S. Ct. at 2784.
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organizations merit substantial protection because their activities—
“[w]orks of justice, mercy, and service”—“lie at the core of many religious
faiths.”81 Put differently, “[f]orming in groups to serve others is central to
religion and therefore to the free exercise of religion: it lies at the core, not
the periphery.”82
Another recurrent controversy, of course, is that involved in Hobby
Lobby itself: religious freedom claims by for-profit corporations. I will not
address this issue in detail, but the importance and the comprehensiveness of
religion suggest that Hobby Lobby was correct to reject any threshold bar to
such claims. People have a significant interest in being able to carry their
religious faith into the operation of their businesses, which involve so much
of their time and effort—including businesses that become large enough to
make the corporate form useful. As the Court recognized, “some for-profit
corporations do seek ‘to perpetuate the religious values shared’ . . . by their
owners”—as, for example, Hobby Lobby does in its stated purpose of
“Honoring the Lord in all we do by operating . . . in a manner consistent
with Biblical principles.”83
The Court correctly rested the right of for-profit corporations to raise
RFRA claims on the fact that the statute should be interpreted vigorously.
The majority reasoned that “RFRA was designed to provide very broad protection for religious liberty”; and it doubted “that the Congress that enacted
such sweeping protection put small-business owners to the choice” of either
foregoing religious-freedom protection or foregoing use of the corporate
form.84 Technically, this was a question of interpreting statutory terms, such
as who are the “persons” entitled to exercise religion; but the majority almost certainly also saw general religious-freedom principles as relevant too.
As I’ve already argued, those principles indeed call for broad protection
given the importance of religious exercise in believers’ lives.
The Court also recognized that excluding for-profit corporations from
RFRA would deny religious objections that many people would find more
sympathetic than the objections in Hobby Lobby itself. The government
“could decide that all supermarkets must sell alcohol for the convenience of
customers (and thereby exclude Muslims with religious objections from
owning supermarkets)”;85 likewise, it could require all gas stations to stay
81
Berg, Progressive Arguments, supra note 6, at 298.
Id. at 299.
83
Hobby Lobby, 134 S. Ct. at 2770 n.23 (quoting Hobby Lobby’s statement of purpose). The Court also rightly noted the connection between recognizing religious-conscience rights here and affirming the premises of corporate social responsibility. See id. at
2771 (“For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian
and other altruistic objectives. . . . [T]here is no apparent reason why they may not
further religious objectives as well.”); id. (noting that more and more states are recognizing the benefit corporation, the “dual-purpose entity that seeks to achieve both a benefit
for the public and a profit for its owners.”).
84
Id. at 2767.
85
Id. at 2781 n.37.
82
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open seven days a week (and thereby exclude observant Jews), or it could
require all stores to sell state lottery tickets (and thereby exclude objectors).86
To pick a more controversial but still powerful example, the Solicitor General conceded at oral argument that under his position, the government could
require corporations to cover any abortion that was permissible in the jurisdiction—that is, any abortion up through the second trimester of pregnancy,
and not just the highly disputed emergency contraceptives at issue in Hobby
Lobby.87 The Court responded: “The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS
would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.”88
Notwithstanding the controversy over abortion, there is a strong tradition of recognizing—in other contexts as well as abortion—the serious burden on conscience created when one is pressured to contribute to what one
regards as unjustified killing.89 Hobby Lobby’s key point is that a business
owner so pressured is effectively “exclude[d] . . . from full participation in
the economic life of the Nation.”90 Regulation of commercial businesses is
often important to permit others to participate in economic life too, but it
cannot ignore the business owner’s interest in participation. Whether religious-freedom claims belong to the corporation itself, or to the owners who
should not lose them when they choose to incorporate, the most important
thing is to recognize the objectors’ ability to bring such claims and put the
government to proof when it claims it cannot make accommodation for sincere religious conscience.
86
Eugene Volokh, 2A. Do Religious Exemption Rights Extend To Commercial Behavior?, VOLOKH CONSPIRACY (Dec. 3, 2013, 2:14 AM), http://volokh.com/2013/12/03/2areligious-exemption-rights-extend-commercial-behavior/, archived at http://perma.cc/
8EXV-PLQK.
87
Transcript of Oral Argument at 75, Hobby Lobby, 134 S. Ct. 2751 (No. 13-354).
88
Hobby Lobby, 134 S. Ct. at 2783. The question is no longer hypothetical: California state insurance regulators have announced that all group plans must cover elective
abortion by virtue of a state law requiring plans to cover all “medically necessary” care.
California: Insurers Must Cover Elective Abortions, ASSOCIATED PRESS, Aug. 23, 2014,
http://bigstory.ap.org/article/california-insurers-must-cover-elective-abortions, archived
at http://perma.cc/5W2D-JULC. Earlier in Washington state, a bill requiring most employers to cover abortions passed the House, although it failed in the Senate. Rachel La
Corte, House Passes Bill Requiring Abortion-Insurance Coverage, SEATTLE TIMES, Feb.
5, 2014, http://seattletimes.com/html/localnews/2022845818_rpapassesxml.html,
archived at http://perma.cc/SN2G-K9M3.
89
See, e.g., Mark Rienzi, The Constitutional Right Not to Kill, 62 EMORY L.J. 121,
125–30 (2012) (describing conscience protections as to military operations, capital punishment, assisted suicide, and abortion).
90
Hobby Lobby, 134 S. Ct. at 2783.
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ACCOMMODATIONS
A. General Observations
Accommodations do not raise a fundamental challenge to the regulatory
state. They take the government’s basic regulatory power as a given and
simply carve out a zone in which to protect the countervailing, important
right of freedom of religion. They are an example of a familiar principle of
constitutional law: a law may be valid on its face and yet impinge on a
constitutionally protected interest in its application to a particular set of
facts. Religious accommodation is appropriate when a facially valid law
would, in a particular application, substantially burden religious exercise
without a strong countervailing interest. Accommodation provides the means
for balancing welfare-state regulation and religious freedom. It allows religious exercise to remain free while the regulation accomplishes its goal in the
large majority of cases. Accommodation tempers regulation without undoing
it.91
The nature of accommodation in the American legal system has made it
flexible and capable of weighing the competing interests. As already noted,
accommodations come from two sources: (1) context-specific statutory enactments or (2) general religious-freedom provisions, constitutional or statutory, that apply to many contexts under a reasonably demanding standard
such as the compelling-interest test of RFRA. Both kinds of accommodations facilitate weighing interests in particular situations in the light of a
wide range of relevant facts. With specific statutory accommodations, the
legislature can seek to strike an appropriate balance by taking testimony and
making findings; it can also draw numerical or other lines that are arbitrary
at the margin but reflect reasonable weighing overall.
With judicial accommodations under a constitutional provision or a
RFRA, the governing standard allows courts to tailor their relief to the religious-freedom claimant and avoid undercutting regulation broadly. RFRA requires that the “application of [a law] to [the particular] person” in
question, if it substantially burdens her religious exercise, must further a
compelling interest by the least restrictive means.92 This means, the Supreme
91
What Justice Rehnquist said about as-applied challenges in general is relevant
here:
When a litigant challenges the constitutionality of a statute, he [normally] challenges the statute’s application to him. . . . If he prevails, the Court invalidates the
statute, not in toto, but only as applied to those activities. The law is refined by
preventing improper applications on a case-by-case basis. In the meantime, the
interests underlying the law can still be served by its enforcement within constitutional bounds.
Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 977 (1984) (Rehnquist, J.,
dissenting).
92
42 U.S.C. § 2000bb–1 (2012).
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Court has unanimously emphasized, that courts should not accept “broadly
formulated interests justifying the general applicability of government mandates” but should “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants.”93 Since all the court will do
under RFRA is grant an exemption (it will not strike the underlying law),
logically the court should only look at the harm resulting from the exemption. By examining government interests and ordering relief “at the margin,” the court can preserve the law’s core purposes while also protecting
religious freedom. And the test, which requires the parties to present evidence and looks to all the facts of the case, enables careful weighing of
interests. Thus, Congress in 1993 specifically found it “a workable test for
striking sensible balances between religious liberty and competing prior governmental interests.”94
Of course, the extent to which accommodations undermine basic regulation depends on the scope of the accommodations. The next section of this
Part, as well as Part III, deal with questions of scope.
B. Hobby Lobby and Its Limits
Much of the recent hue and cry over religious accommodations has
focused on the claims of for-profit businesses. For-profit challenges to the
contraceptive mandate, in particular, have made progressives fearful of the
compelling interest test, and aghast that a 13,000-employee business like
Hobby Lobby could get to square one, let alone win. For example, before the
decision came down, a group of progressive-oriented constitutional scholars
cited the case as a reason to oppose enactment of any state versions of
RFRA in the current context.95 They argued that such statutes could seriously undermine enforcement of laws regulating businesses, and they added
that “[t]he pendency of the Hobby Lobby litigation . . . has intensified these
concerns” because a win for Hobby Lobby might influence the interpretation of state RFRAs. The letter added:
Please note that the Hobby Lobby Corporation has over 13,000
employees. If Hobby Lobby is covered by federal RFRA, and if
state RFRA’s are similarly interpreted, the religious defenses allowed by such laws will extend to very large, for-profit
enterprises.96
93
Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 431
(2006).
94
42 U.S.C. § 2000bb(a)(5) (2012).
95
Letter from Ira C. Lupu, et al., F. Elwood & Eleanor Davis Professor of Law
Emeritus, George Washington Univ., to Philip Gunn, Speaker, Miss. House of Representatives, et al. (Mar. 10, 2014), at 2–3, archived at http://perma.cc/KVD9-GBBX.
96
Id. at 3.
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However, the actual result in Hobby Lobby suggests far less radical
consequences than these. It indicates that RFRAs will put the government to
proof and may result in some required accommodations for commercial
businesses. But there is little or no indication that the provisions will significantly undermine economic regulation—not to anywhere near the extent of
Lochner-era decisions.
As already discussed,97 the Court in Hobby Lobby firmly held that forprofit closely held corporations can assert religious freedom claims. That
holding was correct because people should be able to carry their faith and
conscience into their businesses, even when they incorporate, and because
RFRA should be interpreted vigorously to take seriously people’s ability to
follow their faith in all aspects of life.98
At the same time, the holding of Hobby Lobby is also limited. After
firmly establishing that the closely held companies could sue, the majority
proceeded cautiously in assessing whether the mandate served a compelling
governmental interest by the least restrictive means.99 Justice Alito’s majority
opinion raised questions about whether the mandate served a compelling
interest, given various exceptions it already recognized, and whether government subsidies to provide contraceptives would constitute a less restrictive
means.100 But in the end, the majority opinion avoided these questions and
pointed to the insurer-pays accommodation, since that mechanism saved the
objecting employer from having to pay and there was “no reason why this
accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate.”101
Justice Kennedy, the key fifth vote, joined the majority opinion but also
wrote a concurrence clearly emphasizing the ruling’s limits.102 He suggested
more pointedly that the application of the mandate served “a compelling
interest in the health of female employees,” although he likewise did not
explicitly decide the issue.103 In discussing alternative means of serving this
interest, he commended only the non-profit accommodation, which he called
“an existing, recognized, workable, and already-implemented framework to
provide coverage,” one that “equally furthers the Government’s interest but
does not impinge on the plaintiffs’ religious beliefs.”104 While the majority
opinion contained language suggesting that a new government funding pro-
97
See supra notes 83–90 and accompanying text.
See id.
99
See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779–85 (2014).
100
Id. at 2779–80, 2780–82.
101
Id. at 2782.
102
Id. at 2785 (Kennedy, J., concurring) (“The Court’s opinion does not have the
breadth and sweep ascribed to it by the respectful and powerful dissent.”).
103
Id. at 2786 (“It is important to confirm that a premise of the Court’s opinion is its
assumption that the HHS regulation here at issue furthers a legitimate and compelling
interest in the health of female employees.”).
104
Id.
98
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gram would also count as an available means,105 Justice Kennedy showed
skepticism about that option. He described it as the “imposition of a whole
new program or burden on the Government” and added: “The Court properly does not resolve whether one freedom should be protected by creating
incentives for additional government constraints.”106
Justice Kennedy’s concurrence here recalls United States v. Lopez,107 in
which the Court for the first time in six decades invalidated a federal law on
the ground that it exceeded the commerce power. There as here, the majority
opinion, which Justice Kennedy joined in full, placed a limit on economic
regulation in a way that many called a momentous reversal of past law,
whether lamentable108 or laudable.109 And there, as here, Justice Kennedy
added a concurrence emphasizing that the holding was “necessary though
limited.”110 He said that basic federalism principles required the Court to
“recognize meaningful limits on the commerce power,” but that the holding
did not “call in question the essential principles now in place respecting the
congressional power to regulate transactions of a commercial nature.”111 Indeed, no widespread rollback of the commerce power ever materialized.112
The dynamic with religious claims by for-profit corporations seems likely to
be similar: limiting regulation in a few ways, but preserving most instances
of the government’s power.
The contraceptive-coverage accommodation easily constituted a less restrictive means, for at least two reasons. First, the legal objection in the case
was not over women receiving free or subsidized contraception but rather
over who would pay for it. The companies did not challenge the govern-
105
Id. at 2780–81 (majority opinion).
Id. at 2786 (Kennedy, J., concurring).
107
514 U.S. 549 (1995).
108
See id. at 602 (Stevens, J., dissenting) (criticizing “the radical character of the
[ Lopez] Court’s holding and its kinship with the discredited, pre-Depression version of
substantive due process.”); id. at 608 (Souter, J., dissenting) (suggesting that Lopez “portend[s] a return to the untenable jurisprudence from which the Court extricated itself
almost 60 years ago.”).
109
See, e.g., Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 752 (1995) (“[Lopez]
marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers.”).
110
Lopez, 514 U.S. at 568 (Kennedy, J., concurring).
111
Id. at 580, 574. See also Stephen M. McJohn, The Impact of United States v.
Lopez: The New Hybrid Commerce Clause, 34 DUQ. L. REV. 1, 33–34 (1995) (“The
approach of the majority opinion . . . is to trim existing Commerce Clause doctrine
around the edges. . . . The concurring opinion of Justice Kennedy, joined by Justice
O’Connor, is even more careful to cast the holding as consistent with existing case law.”).
112
Cf. Gonzales v. Raich, 545 U.S. 1, 22 (2005) (approving the application of federal
drug laws to personal medical-marijuana use). The ruling that the Affordable Care Act’s
individual mandate exceeded the commerce power, NFIB v. Sebelius, 132 S. Ct. 2566,
2591 (2012)—whether lamentable or not—left in place the general “expansive” scope of
the commerce power, resting instead on the mandate’s unusual requirement that individuals engage in an economic transaction. NFIB, 132 S. Ct. at 2585–86.
106
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ment’s power to subsidize contraceptives itself.113 As Vikram Amar and Alan
Brownstein put it, writing before the Hobby Lobby decision, “[t]he benefits
provided by the Act—generally available and affordable health insurance—
are fungible, intangible goods that can be provided by either the public or
private sector,” “[a]nd the Act’s beneficiaries have no reason to care about
the source of the insurance.”114
In addition, insurers could cover contraception without premiums—the
solution employed for the non-profit accommodation—because, by the government’s own calculations, the “costs of providing contraceptive coverage
are balanced by cost savings from lower pregnancy-related costs and from
improvements in women’s health.”115 If insurers of religious non-profits
could thus afford it, so it seems can insurers of for-profits. Likewise, the
government had already determined that third-party administrators of selfinsured religious non-profits’ plans could, with a few adjustments, pay to
cover those employees; again, the same dynamic would seem to work for
self-insured for-profits.116
The cost savings from contraception has another relevant implication. It
means that the employer’s objections, unlike objections to many other commercial regulations, will give it no commercial advantage and are unlikely to
be motivated by desire for such an advantage. Employers have every competitive incentive to cover contraception and little self-interested reason to
exclude it. As the next section will discuss, exemptions for commercial business sometimes raise concerns about economic favoritism and about insincere claims seeking commercial advantages.117 But those concerns were not
present in this case.
Hobby Lobby turned out to be an easy case: I do not believe that the
decision exhausts the rights of for-profit closely held businesses under
RFRA. Nevertheless, as Ira Lupu and Robert Tuttle observe, “the fulcrum on
which this case turns—the ability of government to satisfy both religious
interests and the competing concerns of employees and their dependents—
suggests that . . . Hobby Lobby is not nearly so sweeping or radical as it may
113
See, e.g., Brief for Respondents at 35, Sebelius v. Hobby Lobby Stores, Inc., 134
S. Ct. 2751 (2014) (No. 13-354), 2013 WL 5720377, at *35 (arguing that government
“did not explain why it could not use [the Title X funding program] to redress genuine
economic barriers to contraceptive access.”).
114
Vikram David Amar & Alan E. Brownstein, The Narrow (and Proper) Way for
the Court to Rule in Hobby Lobby’s Favor, VERDICT (Apr. 11, 2014), http://
verdict.justia.com/2014/04/11/narrow-proper-way-court-rule-hobby-lobbys-favor,
archived at http://perma.cc/4LJ4-7V53. Amar and Brownstein urged the Court to rule on
precisely the ground that (most narrowly read) it did: the ability to extend the non-profit
accommodation.
115
HHS, Coverage of Certain Preventive Services Under the Affordable Care Act, 78
Fed. Reg. 39870, 39877 (quoted in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2782 n.38 (2014).
116
See id. at 39880.
117
See infra note 125 and accompanying text.
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seem.”118 The many tweets and opinion pieces saying that the Court, and
RFRA, had denied contraceptives to female employees of huge businesses119
were seriously misstating the decision. And there is no prospect that 13,000employee businesses will prevail in cases outside unusual contexts like insurance coverage.120
In short, RFRA worked as Congress intended it would. It led the Court
to “strike [a] sensible balanc[e] between religious liberty and competing
[g]overnmental interests”121—in this case, protecting both through the
mechanism of payment by insurers and third-party administrators. Without
118
Ira Lupu & Robert Tuttle, Hobby Lobby in the Long Run, CORNERSTONE BLOG,
BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS, GEORGETOWN UNIVERSITY
(July 1, 2014), http://berkleycenter.georgetown.edu/rfp/blog/hobby-lobby-in-the-longrun, archived at http://perma.cc/TAH6-A66U.
119
Any list of cites would be merely a drop in the bucket, but some examples from
members of Congress and national public figures are collected and criticized in Glen
Kessler, Fact Checker: Democrats on Hobby Lobby: “Misspeaks,” “Opinion,” and Overheated Rhetoric, WASH. POST, July 14, 2014, http://www.washingtonpost.com/blogs/factchecker/wp/2014/07/14/democrats-on-hobby-lobby-misspeaks-opinion-and-overheatedrhetoric/, archived at http://perma.cc/E96A-LNLT. While editing this very paragraph for
a few minutes, I received a fundraising email from Sen. Al Franken (D-Minn.) stating
that the Court had “given employers veto power over their employees’ health care.” Mass
e-mail from Al Franken, Sen., to author (July 13, 2014, 09:42 AM CDT) (subject line
“Act Now: Update on Hobby Lobby”) (on file with author). Of course, throughout the
HHS contraception dispute, some opponents of the mandate engaged in rhetorical excess
as well.
120
The overreaction was spurred in part by the Court’s order, a few days after Hobby
Lobby, granting a temporary injunction for a religious college that claimed that even the
opt-out process for the non-profit accommodation still made it complicit in the provision
of abortifacients. Wheaton Coll. v. Burwell, 134 S. Ct. 2806, 2807 (2014). To some people, including three dissenting justices, the Court seemed to be beating a rapid “retrea[t]
from [its] position” in Hobby Lobby that the non-profit accommodation was a proper
alternative. Id. at 2808 (Sotomayor, J., dissenting). But this too overstates the Court’s
action.
Some objecting non-profits have argued broadly that simply “maintaining a contractual relationship” with their insurers would make them complicit in the insurers’ provision of the items; but they also argued more narrowly that the government’s specific form
for the opt-out made them complicit by requiring that they “designate” the insurer as the
provider. See, e.g., Petition for Writ of Certiorari, Univ. of Notre Dame v. Burwell (No.
14-392), 2014 WL 4978601, at *21, *23. The Court’s temporary injunction only remedied the narrower objection: it allowed the objector to give a simple written notice of its
objection to HHS rather than designating its insurer, but subject to that change the “insurer pays” process would seem to go forward. Wheaton Coll., 134 S. Ct. at 2807. It is
very hard to see how the government has a compelling interest in the precise form of
objection. But if the bare relationship between the objector and insurer is enough to create a violation of RFRA, the non-profit accommodation would be unenforceable—and
Justice Kennedy, the swing vote, clearly indicated his preference for the accommodation.
See supra notes 102–106 and accompanying text. The government has now proposed a
simplified notice of objection. See Mary Agnes Carey, FAQ: Administration’s New Contraception Rules Explained, KAISER HEALTH NEWS (Aug. 26, 2014), http://www.kaiser
healthnews.org/stories/2013/february/01/faq-contraception-mandate-and-religious-employers.aspxform, archived at http://perma.cc/C9TR-Z29Y.
Although it may take a few months, I expect the Court will ultimately reach a sensible
result: the accommodation will be upheld, but objectors will only have to give a simple
notice of objection to the government.
121
42 U.S.C. § 2000bb(a)(5) (2012).
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RFRA, the Court would have had no authority to push the government toward that ready alternative.
The following two sub-sections comment on the two distinctive features of the Hobby Lobby case: (1) the for-profit status of the objectors, and
(2) the possible distinction between the contexts of insurance coverage and
those of other laws, in particular antidiscrimination laws.
1. For-Profits and Non-Profits After Hobby Lobby
For the reasons already given, the Court was right to extend RFRA to
for-profit claims.122 At the same time, the commercial context has distinctive
features that should, and surely will, make courts and legislatures cautious in
extending broad exemptions. First, exemptions in the for-profit sector could
affect vastly more employees and patrons than exemptions for religious nonprofits: the religious non-profit sector covers perhaps 6–7% of jobs and
wages, and the for-profit sector probably covers ten times that.123 The state
therefore has a heightened interest in the for-profit context in ensuring that
all people are able to participate fully in economic life.124
Moreover, in the for-profit sector, the State has an increased interest in
avoiding giving unfair commercial advantages to some market actors. This
interest is strengthened when the exemption claim is less likely to be sincere;
and sincerity of religious purpose can be presumed more safely with a religiously-affiliated non-profit than with a commercial business.125 There may be
122
See supra notes 83–90 and accompanying text.
The entire non-profit sector accounted for 10% of the workforce and 9.2% of
wages in 2010. See, e.g., The Sector’s Economic Impact, INDEPENDENT SECTOR, https://
www.independentsector.org/economic_role, archived at http://perma.cc/7AXS-UPRP. If
the percentage of non-profit employment that is religiously affiliated tracks the percentage of giving to religious non-profits, it would be about two-thirds of the total, or 6–7%.
STEPHEN V. MONSMA, WHEN SACRED AND SECULAR MIX 9 (1996). Subtracting government employment, about 17%, see Lymari Morales, Government Employment Ranges
from 38% in D.C. to 12% in Ohio, GALLUP (Aug. 6, 2010), http://www.gallup.com/poll/
141785/gov-employment-ranges-ohio.aspx, archived at http://perma.cc/M7SW-KHA8,
leaves approximately 70% in the for-profit sector.
124
See, e.g., Robert K. Vischer, Do For-Profit Businesses Have Free Exercise
Rights?, 21 J. CONTEMP. LEGAL ISSUES 369, 391 (2013) (“The primary concern . . . is that
for-profit corporations are so central to our ability to participate in modern life, including
our ability to earn a livelihood. They are inescapable conduits for many goods deemed
fundamental to our modern existence.”); Micah Schwartzman, Richard Schragger & Nelson Tebbe, Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and
Cutter, BALKINIZATION (Dec. 9, 2013), http://balkin.blogspot.com/2013/12/hobby-lobbyand-establishment-clause_9.html, archived at http://perma.cc/VWZ6-JEA6 (“When such
[large for-profit] employers exercise religious exemptions that impose significant costs
on their employees, those costs are likely to be more substantial and far-reaching.”). I
agree with some of the distinctions Schwartzman et al. make between non-profit and forprofit exemptions, but I disagree with their contention that for-profit exemptions as a
category violate the Establishment Clause. See infra Part III.B.2.
125
See, e.g., Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 344 (1987) (Brennan,
J., concurring) (“The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation.”).
123
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no doubt of the religious sincerity of a given business owner—the government raised none in Hobby Lobby—but there might be in other cases.
Moreover, employees and clients in the for-profit sphere have a heightened expectation that they will be able to interact and transact according to
general societal norms. That expectation does not apply at all to churches
and denominations: as the Court has long said, “All who unite themselves to
such a body do so with an implied consent to [its] government, and are
bound to submit to it.”126 The expectation is also limited when the situation
involves a non-profit that holds itself out as religiously affiliated. Employees
and clients then have good reason to expect that when they deal with the
organization, they may have to follow standards stemming from the organization’s religious identity. Thus, as Micah Schwartzman, Richard Schragger,
and Nelson Tebbe put it, “concerns about equality of opportunity in the nonprofit context are mitigated in part by the reasonable expectation that employees who work for churches and religious-affiliated non-profits understand that their employers are focused on advancing a religious mission.”127
These distinctions between non-profit and for-profit contexts do not mean
that business owners’ claims should automatically be overridden: again,
Hobby Lobby was right to reject that blanket assertion. But the distinctions
do increase the State’s interest in protecting others.
Finally, the expectations of employees and clients are a function of another distinction: non-profits that identify themselves as religiously affiliated
are generally closer to the core of religious exercise than are for-profit businesses selling ordinary secular products. By their very identity—especially
when the identity is announced—these non-profits are carrying out the mission of a religious community. This does not mean that businesses cannot
have serious religious interests, or that the pursuit of profit is irreconcilable
with religious exercise. But again, one can endorse the right of for-profits to
bring claims and still conclude that regulatory interests should limit for-profits’ religious freedom more than non-profits’. Thus it makes sense to give
accommodations generously to religious non-profits but more sparingly to
for-profit businesses; and Hobby Lobby seems consistent with this approach.
2. Anti-Discrimination Claims After Hobby Lobby
On the other issue concerning for-profits—objections to anti-discrimination laws—the Court likewise left open the possibility of recognizing
some exemptions under RFRA but in no way suggested these would be automatic. Justice Ginsburg asked whether the majority’s approach would allow
a restaurant to refuse to serve blacks, a business chain to refuse to hire gays
and lesbians, or the wedding photographer to refuse to shoot pictures of a
126
127
Watson v. Jones, 80 U.S. 679, 729 (1871).
Schwartzman, Schragger & Tebbe, supra note 124, at 1(2).
R
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same-sex ceremony.128 The majority said it was providing “no such shield,”
but it gave complete vindication only to the race-discrimination laws: “[t]he
Government has a compelling interest in providing an equal opportunity to
participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”129 The
majority did not mention Justice Ginsburg’s other examples, which are more
current and involve conflicts between gay-rights laws and traditionalist religious tenets, especially in the context of same-sex marriage.
Under RFRA or its state counterparts, most discrimination cases are
more complicated than the contraceptive-funding issue turned out to be in
Hobby Lobby. The insurer’s or third-party administrator’s coverage of contraception without cost sharing gives employees precisely the same benefit as
the employer mandate would; it therefore constitutes a less restrictive means
no matter how one characterizes the government’s interest. But each act of
discriminatory denial of service or employment causes some effect on the
plaintiff—at the minimum, the cost of being declined service and turning to
the next provider. For the reasons just given, these costs will likely be
greater in the for-profit context than the non-profit context. Courts therefore
must determine what effects on others, in these varying contexts, implicate
compelling governmental interests.
The next Part will discuss in greater detail how to analyze government
interests in anti-discrimination laws in the context of both non-profit religious organizations and for-profit businesses.130 For the moment the point is
simple: religious-freedom claims by for-profits do not always have to be
treated the same as claims by non-profits. Courts might conclude, for the
reasons discussed, that exempting an ordinary for-profit business from antidiscrimination liability for denying employment or service is never required
under a RFRA-type statute. But it would not follow that religious non-profits
should similarly be denied protection.
This point has a corollary. Hobby Lobby should not deter decision-makers from recognizing accommodations for religiously affiliated non-profits
for fear that this will automatically trigger identical exemptions under RFRA
for for-profit businesses. Such fears may have contributed to the decision by
several civil rights groups, immediately after Hobby Lobby, to withdraw
support for the federal gay-rights employment bill on the ground that it contained an exemption for religious organizations.131 But the fact that Hobby
128
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2804–05 (2014) (Ginsburg, J., dissenting) (citing, respectively, Newman v. Piggie Park Enters., 256 F. Supp.
941, 945 (D.S.C. 1966); In re Minnesota ex rel. McClure, 370 N.W.2d 844, 847 (Minn.
1985); Elane Photography, LLC v. Willock, 309 P.3d 53, 60 (N.M. 2014)).
129
Id. at 2783 (majority opinion).
130
See infra Part III.A.2, notes 160–166 and accompanying text.
131
See ACLU et al., Joint Statement on Withdrawal of Support for ENDA and Call
for Equal Workplace Protections for Gay People 2 (July 8, 2014), https://www.aclu.org/
sites/default/files/assets/joint_statement_on_enda.pdf, archived at http://perma.cc/AG22LWN8 (giving as one reason for withdrawal that “opponents of LGBT equality are al-
R
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Lobby extended the non-profit contraception accommodation to for-profits
does not mean that the same thing will happen in other contexts—certainly
not that it will happen willy-nilly. Again, the insurer-pays mechanism, by
the government’s own hypothesis, meant no costs for either employees or
(on net) insurers and thus could easily be extended. By contrast, there are
costs from discriminatory denials of employment or service; the question is
whether and when their nature or size makes them compelling. Exempting
any for-profit businesses increases the costs some; exempting large businesses magnifies the costs dramatically. Thus, legislatures enacting accommodations and courts applying RFRA are permitted to be—and should be—
more cautious in exempting for-profits than exempting religiously affiliated
non-profits.
III. THE PROBLEM
OF
“THIRD-PARTY HARMS”
As the above discussion of discrimination cases shows, the problem of
“harms to others” requires fuller discussion. Increasingly, opposition to religious-freedom claims focuses on harm, or the “shifting of costs,” to third
parties. In its stronger form, the opposition asserts that accommodations that
harm others—or harm them too much—violate the Establishment Clause.
For example, several scholars, in articles and amicus briefs, argued that to
exempt businesses from the contraception mandate would be unconstitutional because it would harm employees by denying them the valuable statutory benefit of free contraception.132 At the very least, opponents might
assert that accommodations that harm others cannot be required under religious-freedom statutes, like RFRA, or state constitutional provisions that require exemptions. The government made this argument in Hobby Lobby,
while refraining from asserting that an exemption would violate the Establishment Clause.133
It may seem intuitively sensible to say simply that religious freedom
does not authorize one person to harm or shift costs to another. As Eugene
Volokh has observed, “religious freedom rights are often articulated as a
right to do what your religion motivates you to do, simply because of your
religious motivation, but only so long as it doesn’t harm the rights of
ready misreading [Hobby Lobby] as having broadly endorsed rights to discriminate.”);
see also Thomas Reese, What’s Next in the Ongoing Struggle Between the Bishops and
Obama?, NAT’L CATH. RPTR. (July 25, 2014), http://ncronline.org/blogs/faith-and-justice/
whats-next-ongoing-struggle-between-bishops-and-obama, archived at http://perma.cc/
XTK9-5FX9 (“Ironically, the Hobby Lobby decision discouraged compromise because
the gay community feared that any exemption for religious nonprofits might be expanded
to for-profit corporations by the courts. This, after all, is what happened in the Hobby
Lobby case.”).
132
See generally Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,
49 HARV. C.R.-C.L. L. REV. 343 (2014); Schwartzman et al., supra note 124.
133
See Reply Brief for the Petitioners at 2–3, Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) (No. 13-354), 2014 WL 985085.
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others.” 134 Obviously religious freedom does not protect killing someone in
a ritual sacrifice, or defrauding others simply because the perpetrator perceives a religious duty. But the problem comes in defining terms like
“harms” or “shifting costs.” In an earlier era of smaller government, legal
prohibitions generally focused on a limited set of direct harms to another’s
body, physical or financial property, or contractual rights. This framework
certainly restricted the harms that religiously motivated conduct, like nonreligiously motivated conduct, could impose on others: no one was free to
commit assault, theft, or fraud even if he did so for religious reasons. Thus, a
number of founding-era figures emphasized that religious freedom gave no
one the right to harm others, but the harms they referred to were immediate,
concrete, and serious matters like assault and theft: Pierre Bayle defended
magistrates’ power and duty “to maintain society and punish all those who
destroy the foundations, as murderers and robbers do”;135 and Thomas Jefferson spoke of religious freedom for actions that “neither pic[k] my pocket
nor brea[k] my leg.”136
While prohibiting many harms, this framework also left a large zone of
freedom in which religious organizations and individuals could act—potentially affecting others, but not in ways that the law deemed to be an impermissible harm. For example, before the rise of modern employment
regulation, religious organizations were legally free to set religiously
grounded standards for their employees: they did not face the possibility that
setting such standards might violate collective-bargaining duties under existing labor laws, or norms of nondiscrimination based on sex or sexual
orientation.
The rise of the welfare-regulatory State has changed this. The active
State declares previously unrecognized legal harms. At-will employment
has given way to extensive regulation of the employment relationship: government declares it a legal harm when an employee is barred from unionizing or is discriminated against based on a prohibited factor. Businesses’
freedom to deal or not deal with others has given way to increasingly wideranging public accommodations laws declaring discrimination in the provi-
134
Eugene Volokh, 5C. RFRA Strict Scrutiny: The Interest in Protecting Newly Created Private Rights, VOLOKH CONSPIRACY (Dec. 6, 2013), http://volokh.com/2013/12/06/
5c-rfra-strict-scrutiny-interest-protecting-newly-created-private-rights/, archived at http://
perma.cc/MU4V-JMEC; see also Eugene Volokh, A Common-Law Model for Religious
Exemptions, 46 UCLA L. REV. 1465, 1510 (1999) [hereinafter Volokh, A Common-Law
Model] (“[A] claim of [a religious-freedom right to conduct that harms others] is normatively unappealing. My relationship with my God may be important to me, but how
can it . . . be a constitutionally sufficient justification for my harming you, even
slightly?”).
135
Pierre Bayle, Philosophical Commentary on These Words of Christ: Compel Them
to Come In, in PIERRE BAYLE’S PHILOSOPHICAL COMMENTARY: A MODERN TRANSLATION
AND CRITICAL INTERPRETATION 7, 167 (Amie Godman Tannenbaum trans., 1987).
136
THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 159 (1784) (William
Peden ed., 1954).
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sion of almost any good or service to be a legal harm.137 And a keystone of
modern constitutional jurisprudence is that government has broad prima facie power to define, declare, and prohibit these harms.138
Government can declare new legal harms based on indirect or probabilistic connections between the violator’s conduct and the ultimate material
harm. The modern State is not limited to imposing liability (criminal or
civil) for actual or immediate harms; it may impose regulation designed to
head off such harms. Under the typical “rational basis” level of constitutional review, courts defer almost completely to the government’s assertions
of risk.139 And government may frame these regulations as benefits or rights
for individual third parties. To prevent the ultimate harms of labor strife and
unfair treatment of employees, government can declare rights of employees
to unionize and can allow individuals to sue.
At the same time, if religious freedom confers no right to harm others,
and the legislature can define anything it wishes as a harm, then the regulatory State will severely constrict religious freedom. For example, once civil
rights laws defined various forms of discrimination as a legal harm to employees, religious organizations were exposed to lawsuits that would trigger
civil court review of many of their decisions concerning their clergy and
other leaders. Although some courts held that Congress’s intent in Title VII
could be interpreted to exclude suits by ministers,140 most courts held that
“the plain text of Title VII and its legislative history foreclose the possibility
of imposing a limiting construction” and that protection for religious organizations had to rest in the Constitution.141 Ultimately, therefore, religious organizations retained their ability to choose their leaders, free from civil
second-guessing, only because of a court-ordered religious accommodation:
the ministerial exception, affirmed in Hosanna-Tabor Evangelical Lutheran
Church & School v. EEOC.142
The Hobby Lobby majority addressed this issue in responding to the
government’s argument that RFRA should never be interpreted so as to with137
See, e.g., Justin Muehlmeyer, Toward a New Age of Consumer Access Rights:
Creating Space in the Public Accommodation for the LGBT Community, 19 CARDOZO
J.L. & GENDER 781, 786–90 (2013); Lauren J. Rosenblum, Note, Equal Access or Free
Speech: The Constitutionality of Public Accommodations Laws, 72 N.Y.U. L. REV. 1243,
1251 (1997) (“[T]he concept of ‘public accommodations’ now sweeps well beyond the
traditional category of inns, restaurants, and other common carriers, reaching ‘various
forms of public, quasi-commercial conduct.’”) (footnotes omitted); see also Roberts v.
U.S. Jaycees, 468 U.S. 609, 625–26 (1984) (noting the “expansive definition” of public
accommodations in “many [s]tates and municipalities”).
138
See Volokh, A Common-Law Model, supra note 134, at 1521–29.
139
See, e.g., Williamson v. Lee Optical, 348 U.S. 483, 487 (1955) (concluding that
although a regulation may be “a needless [and] wasteful requirement in many cases[,]
. . . it is for the legislature, not the courts, to balance [its] advantages and
disadvantages”).
140
See McClure v. Salvation Army, 460 F.2d 553, 560–61 (5th Cir. 1972).
141
Petruska v. Gannon Univ., 462 F.3d 294, 303 n.4 (3d Cir. 2006); accord Rayburn
v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1165–67 (4th Cir. 1985).
142
132 S. Ct. 694, 696 (2012).
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hold a statutory benefit from third parties. The question of effects on others,
the Court recognized, “will often inform the analysis of the Government’s
compelling interest and the availability of a less restrictive means” of advancing it.143 But, the Court went on to say:
[I]t could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily
the government interest could be achieved through alternative
means, is permissible under RFRA so long as the relevant legal
obligation requires the religious adherent to confer a benefit on
third parties. [If that were so, then by] framing any Government
regulation as benefiting a third party, the Government could turn
all regulations into entitlements to which nobody could object on
religious grounds, rendering RFRA meaningless.144
The Court cited the examples already mentioned: a Muslim-owned
store required to sell alcohol so its customers might benefit; a restaurant
owner required to stay open on his Sabbath so employees of other faiths
could earn wages and tips.145
It is easy to multiply examples of accommodations that affect third parties and yet are at least constitutionally permissible, whether or not mandated by RFRA. Draft exemptions “shift harm” from the pacifist to another
person who must be drafted; the clergy-penitent privilege may shift harm to
the crime or tort victim who may lose the benefit of testimony.146 In unemployment cases like Sherbert v. Verner, a former worker’s claim for benefits
increases an employer’s rate of assessment for unemployment taxes.147 In
Wisconsin v. Yoder, in protecting Amish parents from criminal fines for
withdrawing their children from school at age fourteen, the Court noted that
none of the defendants’ children had objected to their parents’ decision.148
Could the state have won the right to impose punishment by fiat by declaring
(regardless of any individual child’s wishes) that each child had a statutory
143
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2781 n.37 (2014).
Id.
145
Id.
146
See Eugene Volokh, 3B. Would Granting an Exemption from the Employer Mandate Violate the Establishment Clause?, VOLOKH CONSPIRACY (Dec. 4, 2013) http://
volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment
-clause/, archived at http://perma.cc/W3N-ZB25 (“I don’t know of any court that has
taken the view that applying the clergy-congregant exemption from the duty to testify in
[the victim’s] case would violate the Establishment Clause violation, despite the likely
burden this would impose on [the victim]. . . . [I]t seems pretty well-settled that the
exemptions are constitutionally permissible, notwithstanding these burdens.”).
147
374 U.S. 398, 399–400 (1963). See, e.g., Volokh, A Common-Law Model, supra
note 134, at 1513–14 & 1513 n.154 (“Unemployment compensation is generally experience-rated, so an employer’s unemployment tax payments are tied to the number of
claims the employer has had to pay out.”).
148
406 U.S. 205, 230–32 (1972).
144
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right to attend school to age sixteen?149 These examples vindicate the concern expressed in Hobby Lobby that in the era of the active State, virtually
any regulation could be cast as a protection of the rights of identifiable third
parties. Religious accommodation offers the means to mediate between the
expanded State and the free exercise of religion—to affirm the legitimacy of
the former while preserving room for the latter. The first section of this Part
discusses the scope of accommodation under statutes like RFRA. The second section discusses the limits the Establishment Clause may impose on
accommodations that affect others.
A. Harms and Compelling Interests
If we are to affirm the legitimacy of the welfare state, we cannot say
that only historic common-law, libertarian harms—physical force, theft, or
fraud—are cognizable grounds for overriding religious freedom. On the
other hand, to preserve the importance of religious freedom in the welfare
state, there must be some limits on what counts as a harm to others that
justifies state regulation seriously burdening religion. This question is complicated precisely because since 1937 there has been no simple way to define
a “legally cognizable harm” other than what the legislature says is a harm.150
The best that can be done is to describe an overall approach toward limiting
government burdens on religion, and the most common considerations that
inform that approach.
With respect to the overall posture, I believe we have come up with no
better formulation than to say that substantial restrictions on religious practices should be relieved unless the government interest in the situation is
quite strong—“compelling,” in RFRA’s terms—and no less restrictive
means can be adopted without significantly compromising the government’s
interest. This is the standard set forth in RFRA, but it also provides a guide
for legislatures to enact specific statutory accommodations. It is “a balancing test,” but “with the thumb on the scale in favor of protecting constitutional rights.”151
149
This is to say nothing of the fact that constitutional doctrine allows harms to third
parties in the course of protecting other constitutionally important interests. Free speech
law protects the imposition of reputational harms on negligently defamed plaintiffs, see
N.Y. Times v. Sullivan, 376 U.S. 254, 282–83 (1964); criminal-procedure provisions may
harm victims by preventing convictions or even prosecutions of criminals.
150
See Volokh, A Common-Law Model, supra note 134, at 1522 (“The Court ultimately repudiated [pre-1937] substantive due process jurisprudence, because it concluded that the legislature may redefine private rights . . . .”).
151
Douglas Laycock, The Religious Exemptions Debate, 11 RUTGERS J.L. & RELIG.
139, 151–52 (2009). Even strict scrutiny will permit many applications of general laws to
religious practice—unlike its results in free speech, racial discrimination, and even religious discrimination cases, where it nearly always invalidates the law. See Adam Winker,
Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal
Courts, 59 VAND. L. REV. 793, 861–62 (2006) (finding that 74% of claims for religious
exemptions were rejected in the relevant sample; concluding that “there is a major differ-
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135
As to the factors in the analysis, no algorithm is possible. All that one
can do is identify the most common factors and give examples of the roles
they play. These various factors should be weighed to produce a balance
with the thumb on the scale of religious freedom.
1. Immediacy and Severity of the Harm
It is one thing to say that a person cannot rely on religious grounds to
assault another or trespass on her property. It is another thing to say that a
person cannot ingest drugs at a worship service because some of the supply
might be trafficked and end up harming others. Both cases ultimately involve asserted harms to others, but the harms in the drug case are indirect,
dependent on contingent chains of events, and diffuse. Such asserted harms
must be subject to stringent questioning, including judicial review under a
RFRA standard, to ensure that the harm will be both certain and severe.
Much of the expanded regulation in the modern state depends on such assertions of indirect harm; after 1937, the government has the power to legislate
on this basis.152 But in the context of a religious exemption, assertions of
indirect harm must be subject to stringent questioning; otherwise, they will
gravely shrink religious freedom.
In contrast, direct, particularized harms to an individual are more likely
to justify denying an exemption. James Madison, a strong defender of free
exercise, referred to such harms when he said that free exercise should prevail unless it “trespass[es] on private rights” (or, he added, “the public
peace”).153 Religious freedom gives no one the right to commit direct invasions of another’s life, liberty, or property—the historic framework of criminal or tortious acts.
But even with particularized harms, other factors still need to be considered. If no action immediately affecting another individual should ever be
exempted, then the ministerial exception would be inappropriate, since it
allows a religious organization to deny employment to a specific individual.
Nor would it ever be appropriate to order an exemption allowing a religious
organization to employ members of its faith preferentially for non-ministerial positions—but courts have declared that RFRA’s principles require an
exemption from religious-discrimination laws in such situations.154
ence between strict scrutiny’s deadliness as applied in exemption cases compared to discrimination cases”). Arguably the standard has elements of intermediate rather than strict
scrutiny; but, as I’ve written before, the “compelling interest” language still is warranted
because of the tendency of courts to underenforce whatever exemptions test they follow.
Thomas C. Berg, The New Attacks on Religious Freedom Legislation, and Why They Are
Wrong, 21 CARDOZO L. REV. 415, 426 (1999).
152
See supra notes 137–38 and accompanying text.
153
Letter from James Madison to Edward Livingston (July 10, 1822), reprinted in 9
THE WRITINGS OF JAMES MADISON 98, 100 (Gaillard Hunt ed., 1910).
154
See, e.g., Porth v. Roman Catholic Dioc. of Kalamazoo, 532 N.W.2d 195,
199–200 (Mich. Ct. App. 1995) (applying RFRA, when it still applied to states, to exempt a Catholic school from a state religious-discrimination suit by a fifth-grade teacher);
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In those situations, a religious organization’s actions that immediately
affect specific individuals should nonetheless be protected because they are
part of the organization’s internal governance and self-definition (a factor in
the analysis discussed in the next sub-section). Courts additionally need to
examine whether the effect is significant enough in itself to involve a compelling interest. For example, consider the contraception mandate: the public
health benefits of contraception are strong,155 but employers were not stopping employees from getting contraception. The interest behind the coverage
mandate was in ensuring effective access to contraception for each female
employee no matter how modest her income or resources.156 Had contraception always been relatively cheap, the government’s case under the compelling-interest component of RFRA’s test would have been weakened.157 The
government’s case for a compelling interest was stronger because some contraceptives—those most effective, or in some cases necessary—cost considerably more and were a significant expense for modest-income women.158
These facts should be considered under the case-by-case analysis mandated
by RFRA.
2. Nature of the Claimant and Claimant’s Interest
As has already been discussed, there are multiple reasons to distinguish
the claims of religious non-profit organizations from those of for-profit businesses—to recognize accommodations generously in the former cases but
more sparingly in the latter.159 To give an example of how the analysis may
differ in the two contexts, let me return to the example of exemptions from
anti-discrimination laws.
see also Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335–36 (1987) (assuming,
pre-Smith, that the Free Exercise Clause would require exempting a religious organization from liability for favoring persons of its own faith for any jobs involving religious
activities, not just for ministerial positions).
155
See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2799 (2014) (Ginsburg, J., dissenting) (“The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. And the mandate secures benefits wholly
unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.”
(citations omitted)).
156
See, e.g., id. at 2789 (noting that the mandate rested on the “disproportionate
burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without
cost sharing.”).
157
See, e.g., Megan McArdle, Sell Birth Control Over-the-Counter, BLOOMBERG
VIEW, Sept. 10, 2014, http://www.bloombergview.com/articles/2014-09-10/sell-birthcontrol-over-the-counter, archived at http://perma.cc/M6ED-2WHQ (“Generic birth-control pills are a cheap, regular expense used by many millions of people, exactly the sort of
thing that insurance is not designed for.”).
158
See, e.g., Hobby Lobby, 134 S. Ct. at 2800 (the cost of an IUD, which is “significantly more effective” than other methods, is “nearly equivalent to a month’s full-time
pay for workers earning the minimum wage”); McArdle, supra note 157 (noting the
higher costs of IUDs).
159
See supra notes 123–27 and accompanying text.
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What interests underlying anti-discrimination laws are sufficient to
limit religious freedom? The courts have divided over that question. If the
relevant compelling interest served by anti-discrimination law is to ensure
that the protected class has ample access to economic transactions and opportunities, then it is possible—and it is a less restrictive means—to exempt
a limited class of small commercial providers whose objections would not
affect access. Thus Massachusetts’s highest court, applying the state constitution, held that a small landlord might prevail on a religious-freedom defense to a charge of marital status discrimination in refusing to rent to an
unmarried male-female couple.160 Under the compelling interest test of the
state provision, the court said:
We have no indication, beyond the facts of this case, whether the
rental housing policies of people such as the defendants can be
accommodated . . . without significantly impeding the availability
of rental housing for people who are cohabiting or wish to cohabit.
Market forces often tend to discourage owners from restricting the
class of people to whom they would rent.161
By contrast, other courts have held that government has a compelling
interest in preventing each and every act of discrimination; there is no alternative means to satisfy that interest other than to penalize each objector. In a
nearly identical case involving a small landlord and an unmarried oppositesex couple, the Alaska Supreme Court held that the state had a compelling
“transactional interest in preventing discrimination based on irrelevant characteristics,” regardless of whether the refusal materially impeded the
couple’s access.162 The court said that “[t]he government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing. Allowing housing discrimination that degrades
individuals, affronts human dignity, and limits one’s opportunities results in
harming the government’s transactional interest in preventing such
discrimination.”163
If a for-profit claim in the discrimination context undermines the access
interest—if the protected class would find it materially harder to get jobs or
access goods and services—it will surely, and rightly, be denied. The only
question is whether the compelling interest extends to preventing discrimination in every commercial transaction, foreclosing any exemptions, even
when there is no material effect on access. One might answer yes, on the
ground that it is especially important to ensure everyone’s full participation
in economic life, to prevent refusals that foment resentment and division,
and to head off a possible multiplicity of claims.
160
Attorney Gen. v. Desilets, 636 N.E.2d 233, 241 (Mass. 1994).
Id. at 240.
Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 283 (Alaska 1994).
163
Id.
161
162
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On the other hand, we can also identify a few limited categories in
which claims by for-profit businesses are at their strongest and, because of
the limits, do not present the systemic policy risks identified above. I mean
here only to suggest these categories, not to attempt a full defense of them,
or an exhaustive list. Most obviously, a business offering distinctively religious goods or services—a kosher food producer or an evangelical book publisher or broadcaster—might discriminate on a ground connected to its
religious purpose, for example hiring only members of the faith. Such businesses have distinctively strong religious interests, usually providing clear
indicia of their sincerity, and they seldom if ever control broad economic
opportunities.164 More controversial, but meriting consideration, are businesses (most of them very small) that provide typical goods and services but
seek to create a pervasively religious workplace: an example is some law
firms made up of evangelical Christians who pray as well as practice law
together. If the criteria for “pervasive integration” of religion were demanding enough—religious meetings, codes of conduct for employees, and other
indicia—only a very small number of deeply committed business owners
would be likely to choose it.
Finally, and most controversial, are the cases of sole proprietors or
small-business owners providing personal services to facilitate directly a ceremony or relationship to which they object. These include the small landlords discussed earlier who object to renting to unmarried cohabiting
couples, and the wedding photographer in Elane Photography, LLC v. Willock165 who declined to provide services for a same-sex commitment ceremony. These objectors plausibly feel the most direct personal responsibility
for their contribution to others’ actions. To apply the anti-discrimination rule
forces such a provider, by law, to violate her conscience by directly supporting behavior she believes sinful or to pay monetary sanctions that, as they
aggregate, may drive her from her business.166
It must be recognized, of course, that those denied service can experience offense, resentment, or jarring at a single provider’s discriminatory refusal, even if they can get services from the very next provider. But striking
a balance between rights requires comparing the two harms. If the patrons
have access, without hardship, to another provider, then the legal burden on
the provider is the more serious one.
164
See, e.g., Grote v. Sebelius, 708 F.3d 850, 856 (7th Cir. 2013) (Rovner, J., dissenting) (in the contraception-mandate case, distinguishing business making ordinary goods
from, for example, “for-profit publisher of Christian texts” whose profits were ultimately
directed to charitable purposes) (citing Tyndale House Publishers, Inc. v. Sebelius, 904 F.
Supp. 2d 106 (D.D.C. 2012), appeal dismissed on government’s request, 2013 WL
2395168 (D.C. Cir. 2013)).
165
309 P.3d 53 (N.M. 2013).
166
For example, the photographer in Elane Photography was assessed approximately
$6,600 in attorney’s fees (with no proof of actual damages); the plaintiff couple waived
the award, see id. at 60, but of course there is no guarantee that will happen in subsequent
cases.
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Whatever courts conclude about these cases, two points should be clear.
First, the cautious approach to accommodation in the for-profit sphere means
that anti-discrimination exemptions should not extend beyond a set of small
businesses providing services directly to activities to which they conscientiously object. The arguments for such a carefully defined small-business
exception do not justify exemption for much larger businesses or for those
that have market power (for example in lightly populated areas). Nor should
we exempt the objector who refuses service in a context that has no real
nexus to the behavior she opposes. Exemption may extend to those who seek
to avoid providing such a service directly, but not to those who seek to avoid
dealing with same-sex or unmarried couples altogether. If a wedding photographer has a right to avoid providing services to a wedding, a restaurant
owner still has no right to refuse couples a table. These lines may be difficult
to draw at the margin, but they are worth drawing if we value both interests.
Second, as has already been emphasized, accommodations should be
broader for non-profits than for for-profits. It is possible that courts will
conclude, for reasons already discussed, that no for-profits should be exempted from anti-discrimination laws at all—that is, that the for-profit marketplace must be free from prohibited discrimination in every transaction.
But it would not follow, of course, that religious non-profits should be denied accommodation—certainly not when they lack the market power to
harm the interest in access to services. Even if the wedding photographer is
not exempted, there remain good reasons why Catholic Charities adoption
agencies should be exempted when ample alternative providers are willing
to place children with same-sex couples.
3. Likelihood That the Harm Will Repeat and Accumulate
Even if a harm does not implicate a compelling interest in each individual case, it may do so if it repeats in significant numbers. For example, even
if we concluded that a few instances of discrimination by small businesses
would not significantly affect members of a protected class, widespread discrimination surely would harm them by reducing their access to services.
This will happen, first, if religious objectors are numerous or large enough to
hold market power over the matter in question. Thus, among the cases of
small landlords refusing rentals to unmarried couples, even the Massachusetts court—which was open to exempting the landlord—would not do so if
exemption would “significantly imped[e] the availability of rental housing”
for such couples.167
Cumulative accommodations are also a threat if the religious objection
coincides significantly with secular self-interest, such as financial benefit or
commercial advantage. Self-interest threatens to encourage multiple claims,
not always because the claimant is insincere, but sometimes because con167
See Attorney Gen. v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994).
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science and self-interest affect each other. Draft exemptions present this concern, which may be a reason why they were never constitutionally required
even before Employment Division v. Smith.168 So do tax exemptions, which
probably helps explain why the Court in United States v. Lee169 held that a
claim by a few Amish artisans against paying employees’ Social Security
taxes posed a danger to the whole Social Security system. Such a parade of
further claims and exemptions cannot simply be assumed under RFRA; there
must be a convincing showing that it is likely. And often religious conduct
cannot be chalked up to self-interest.170 Hoasca tea and peyote, hallucinogenic substances at issue in recent cases, are both unpleasant to ingest.171
And returning to the case of small landlords, “[m]arket forces often tend to
discourage owners from restricting the class of people to whom they would
rent.”172 But in some cases, the accumulation of exemptions is a worry.
Self-interested exemption claims can be reduced by imposing alternative burdens on objectors. Draft objectors, for example, have typically been
required to work in roles, such as hospital caregiver, that do not directly
advance the fighting. These may not only reduce the incentives to make
insincere claims; they may also, to some extent, serve the government’s
overarching goals. Draft objectors who work in medical settings still perform a public service by caring for those who have fought.
4. Alternative Means
Finally, there is the factor that was decisive in Hobby Lobby: under
RFRA, the government that substantially burdens religion must show not
only that the burden serves a compelling interest but also that it does so by
the least restrictive means.173 Hobby Lobby held that the mechanism for coverage by the insurer or third-party administrator was an available, less restrictive means. That mechanism was practicable, remember, because by the
government’s own calculations, insurance coverage of contraception saves
costs on net by avoiding costs from pregnancies.174
As already noted, the majority was less clear on whether the option of
increasing public funding of contraception would constitute an available less
restrictive means—at least Justice Kennedy, the crucial vote, seemed doubt168
See Gillette v. United States, 401 U.S. 437, 461 n.23 (1971) (citing cases rejecting
constitutional claims to draft exemptions).
169
455 U.S. 252, 258–60 (1982).
170
Cf. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418,
436 (2006) (RFRA rests on “the feasibility of case-by-case consideration of religious
exemptions to generally applicable rules”).
171
Id. at 418 (hoasca tea); Emp’t Div. v. Smith, 494 U.S. 872 (1990) (peyote); Brief
for Dr. John H. Halpern et al. as Amici Curiae Supporting Respondents in O Centro, 546
U.S. 418 (No. 04-1484), 2005 WL 2237541, at *21 (“Both [peyote and hoasca] may
induce nausea and vomiting.”).
172
Desilets, 636 N.E.2d at 240.
173
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014).
174
See supra notes 114–17 and accompanying text.
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ful in his separate opinion about requiring that option.175 Justice Kennedy
may have been influenced by the fact that there seemed to be no chance
Congress would ever pass such a funding program. But in many cases, the
government could increase access to a good or service by increasing its subsidies or providing tax incentives to encourage manufacturers or distributors
to provide it at lower cost.176 By these mechanisms, the government would
take the impact of an employer’s religious-freedom right—the refusal to provide mandated contraception—and spread it from the relatively small number of employees directly affected to a much larger group, the overall
taxpaying public. As Alan Brownstein has argued, such measures answer the
objection that it is unfair to shift the costs of religious exercise to other
specific individuals.177 Moreover, when the general public bears the costs,
“the balancing analysis in free exercise cases is more appropriately analogized to the kinds of judicial balancing that occurs” in, for example, free
speech cases, where the public bears costs such as the security measures
necessary to protect unpopular speakers from angry crowds.178 This mechanism would work even if contraception coverage involved net costs for providers: the government would simply bear the costs, spreading them widely
over the general population to avoid burdening anyone significantly.
These options illustrate a crucial point about alternative means. The
government can develop them based simply on pragmatic considerations—
what will work best—and the RFRA framework encourages such solutions.
Under pressure from lawsuits relying on RFRA, the government came up
with a creative mechanism to accommodate objections by religious nonprofits; in hearing and deciding the Hobby Lobby case under RFRA, the
Court likewise turned to this mechanism to accommodate objections by
closely held for-profits. Without RFRA’s mandate to explore accommodations for religious objections, there would have been little or no legal pressure for the administration, or the Court, to engage in this problem solving.
In some cases, alternative means may be available without the government creating them. The private economy may itself provide alternative
means, for example, in assuring that same-sex couples have full access, in
material respects, to personal marriage-related services. There may be multiple adoption services, or multiple wedding photographers, ready to provide
such service at little or no extra cost to the clients. As the court in the Massa-
175
See supra notes 102–06 and accompanying text.
See, e.g., Korte v. Sebelius, 735 F.3d 654, 686 (7th Cir. 2013) (arguing that
“[t]he government can provide a ‘public option’ for contraception insurance; it can give
tax incentives to contraception suppliers to provide these medications and services at no
cost to consumers; it can give tax incentives to consumers of contraception and sterilization services,” and that “[n]o doubt there are other options”).
177
Alan Brownstein, Taking Free Exercise Rights Seriously, 57 CASE W. RES. L.
REV. 55, 128–29 (2006).
178
Id. at 128.
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chusetts landlord case noted, providers have market incentives to serve paying customers.179
B. Establishment Clause Limits on Accommodation: Why They Should
Not Be Strict
While it may be complicated to analyze whether RFRA requires an
accommodation that allows harm to others, it is simpler to analyze whether
the Establishment Clause prohibits such accommodations. The clause places
some outside limits on how far a statutory accommodation may go, but those
limits should be lenient. Given the role of accommodations in preserving
religious freedom in the era of the active State, stringent judicial policing of
the permissibility of accommodations is not appropriate. An accommodation
should not be struck down unless the direct, immediate burdens it imposes
on others are clearly disproportionate to the legal burdens it removes from
religious practice.
It is clear that an accommodation provision is not invalid simply because it singles out religious practice for protection. Two rulings decisively
reject that proposition by upholding an accommodation unanimously: Corporation of Presiding Bishop v. Amos, approving Title VII’s exemption of
religious organizations from liability for religious discrimination;180 and Cutter v. Wilkinson, affirming the provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) that protects state prisoners’ exercise of
religion unless the prison can show a compelling interest in restricting it.181
In Amos, the Court said that “there is ample room for accommodation of
religion,” that a law does not advance or sponsor religion “merely because it
allows churches to advance religion,” and that “when government acts with
the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with
benefits to secular entities.”182 History confirms that exemptions of religious
practice from government regulation were not generally components of establishment. “Exemptions protect minority religions,” Douglas Laycock has
shown, “and they emerged only in the wake of toleration of dissenting worship,” as part of “a political commitment to free exercise,” not to
establishment.183
The Court, however, has indicated that an accommodation may go too
far and eventually violate the Establishment Clause. Estate of Thornton v.
179
Attorney Gen. v. Desilets, 636 N.E.2d 233, 241 (Mass. 1994).
483 U.S. 327, 339 (1987).
544 U.S. 709, 726 (2005).
182
Amos, 483 U.S. at 337–38.
183
Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original
Understanding of the Establishment Clause, 81 NOTRE DAME L. REV. 1793, 1796, 1803
(2006); accord Michael W. McConnell, Accommodation of Religion: An Update and a
Response to the Critics, 60 GEO. WASH. L. REV. 685, 693 (1992).
180
181
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Caldor, Inc., for example, invalidated a statute imposing an absolute duty on
employers to grant an employee’s request for his Sabbath day off.184 In Cutter, while upholding RLUIPA’s prison provisions, the Court laid out three
considerations defining whether an accommodation is unconstitutional.185 In
addition to removing a substantial burden from religious practice and observing equality among religions, an accommodation must take “adequate
account of the burdens [it] may impose on nonbeneficiaries.”186
This narrower challenge to the constitutionality of accommodations,
emphasizing the existence of “burdens on nonbeneficiaries,” has now taken
center stage in the continuing disputes. In the Hobby Lobby litigation, the
argument was that a RFRA exemption would unconstitutionally deprive employees of statutorily guaranteed free coverage of contraception; the argument was energetically pressed in amicus briefs and articles by Frederick
Gedicks and Rebecca Van Tassell187 and by Micah Schwartzman, Richard
Schragger, and Nelson Tebbe.188
The validity of this argument turns on how stringently the test of Cutter
is applied—and it should not be applied stringently. Under the Cutter test,
the burden the accommodation imposes on others is not determinative: it
must be weighed, if only in a rough way, against the burden the accommodation removes from sincere religious practice. And for several reasons, only a
great disparity between the two factors should suffice to disapprove the
accommodation.
1. Case Law
First, only such weighing can explain the results of the cases. The exemption for religion-based hiring in Amos allowed the organization to discharge an individual from his job189—unquestionably a significant,
individualized burden. Yet the Court unanimously upheld it because, as Justice Brennan later wrote, it “prevented potentially serious encroachments on
protected religious freedoms.”190 The critics of for-profit exemptions to the
contraception mandate concede, as they must, that exemptions for religiously affiliated non-profits are permissible even when they significantly affect identifiable individuals.191 Only by taking into account the legal burden
184
472 U.S. 703, 708–10 (1985).
544 U.S. at 720.
186
Id.
187
Gedicks & Van Tassell, supra note 132, at 363.
188
Schwartzman et al., supra note 124.
189
Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 330 (1987).
190
Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 18–19 n.8 (1989) (Brennan, J., plurality
opinion).
191
See, e.g., Gedicks & Van Tassell, supra note 132, at 368 (noting that the religioushiring exemption “created a substantial burden [on an employee] where none previously
existed”). The critics do offer widely varying formulations of this principle, some of
which would severely limit the ability to accommodate religious organizations. Compare,
e.g., id. at 369–70 (arguing that the religious-hiring exemption approved in Amos was
185
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removed from religion in its consideration can the court give the necessary
weight to the free exercise interests that support accommodation.
The two decisions invalidating accommodations show that the rule of
invalidity is actually quite narrow. In Caldor, which invalidated a state law
requiring private employers to give employees their Sabbath day off,192 the
issue was not just that the costs imposed on others were large (the statute
gave employees an unqualified right no matter what the cost to employers
and other employees)193: it was also that the burden on employees’ religion
that the statute removed had been imposed not by the state, but rather by
private employers. Accordingly, as Justice O’Connor put it, the statute
“[was] not the sort of accommodation statute specifically contemplated by
the Free Exercise Clause.”194 Surely the strongest case for government to
adopt a religious exemption is one in which government itself has created
the burden, implicating the Free Exercise Clause’s special concern for religious freedom against the government. In Caldor, with that justification absent, the interests the statute served were far outweighed by the threatened
effects it could have on others. And in Texas Monthly v. Bullock, which
struck down a sales-tax exemption for religious publications, only three Justices joined a plurality opinion questioning religious accommodations in a
significant range of circumstances.195 The others found that rationale too
broad: they focused on the fact that the statute favored religious messages
and publications, which among other things implicated content-neutrality
principles under the Free Speech and Free Press Clauses.196
2. Historical/Theoretical Foundations
Second, the theoretical and historical foundations for calling accommodation an establishment are shaky, and they support only a modest Establishment Clause limit. As already noted, statutory exemptions from general laws
only a “modest extension” of church autonomy doctrine and “merely gave to religious
nonprofit organizations the same right held by secular cause-based nonprofits to discriminate in favor of employees who affirm and live according to the principles on which the
organization is founded,” and suggesting that beyond that non-profit accommodations
affecting others are impermissible) with Schwartzman et al., supra note 124 (suggesting
only that non-profit exemptions raise establishment issues in “special circumstances”
such “as where a religious non-profit (e.g., a hospital) monopolizes a local market”).
192
Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708–10 (1985).
193
Id. at 709–10.
194
Id. at 712 (O’Connor, J., concurring).
195
See Tex. Monthly, 489 U.S. at 14–20 (Brennan, J., plurality opinion).
196
See id. at 25–26 (White, J., concurring in the judgment) (concluding that “the
proper basis for reversing the judgment below” was that exemption violated the Free
Press Clause by discriminating among publications based on content); id. at 28–29, 27
(Blackmun, J., concurring in the judgment) (concluding that exempting only religious
publications unconstitutionally gave “preferential support for the communication of religious messages,” but criticizing Brennan’s broader rationale for “subordinating the Free
Exercise value”).
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historically served to protect minority faiths, not to favor the majority.197
Gedicks and others argue that “[p]ermissive accommodations that require
unbelievers and nonadherents to bear the costs of someone else’s religious
practices constitute a classic Establishment Clause violation.”198 They point
out that “establishments imposed legal and other burdens on dissenters and
nonmembers that it did not impose on members.”199 But those establishments pressured dissenters to attend the favored church and required them to
pay taxes for its support.200 Such requirements differ from regulatory exemptions in the very ways that are at issue. Compulsion to attend a church is
indeed compulsion to engage in a religious practice, something that no regulatory exemption requires. Required tax support for the favored religion
removes no legal burden on that faith and thus serves no free exercise interest. Accommodations from regulation serve those interests. To cite forced
worship or tax support as the analogies that condemn accommodations is to
beg the very questions at issue.
A more pertinent historical case for religious exemptions is the original
“benefit of clergy,” the arrangement by which clerics in the medieval
church were free from civil jurisdiction—triable and punishable only in
church courts—for any felonies they committed.201 King Henry II’s attempt
to constrict this privilege and prosecute “criminous clerks” in royal courts
for rapes, murders, and thefts lay at the core of his confrontation with Archbishop Thomas Becket from 1163–1170.202 Unlike compelled worship or tax
support, benefit of clergy actually involved the feature most relevant to accommodations: exemption of religious actors from secular regulation when
they had caused harm to others.203
Long before the American founding, benefit of clergy evolved away
from a religious privilege; by the time it crossed the Atlantic, it had become
a means for a wide range of defendants to claim reduced sentences, mitigating the harsh (typically capital) punishments of English law.204 The distinc197
See supra note 183 and accompanying text.
Gedicks & Van Tassell, supra note 132, at 363.
199
Id. at 362 (citing Michael W. McConnell, Establishment and Disestablishment at
the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105,
2144–46 (2003)).
200
McConnell, supra note 199, at 2144–46.
201
See, e.g., GEORGE W. DALZELL, BENEFIT OF CLERGY IN AMERICA & RELATED
MATTERS 9–15 (1955); THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 439–41 (5th ed. 1956).
202
HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN
LEGAL TRADITION 255–64 (1983); PLUCKNETT, supra note 201, at 439.
203
See PLUCKNETT, supra note 201, at 439. Despite this, almost no critics of accommodations refer to benefit of clergy in making their case; the chief exception is Marci A.
Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, 2004
BYU L. REV. 1099, 1122–35 (2004). I agree with Professor Hamilton that benefit of
clergy is the right analogy but disagree with her assertions that it suggests extensive
limits on modern accommodations.
204
BERMAN, supra note 202, at 611 n.12 (the test of “ability to read . . . swept more
and more people into the immunity as time went on”); DALZELL, supra note 201, at
198
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tively English religious establishment, created under Henry VIII, actually
restricted benefit of clergy, since a prime purpose of the establishment was
to subject the Church to royal control.205 Nevertheless, the earlier arrangement can easily be seen as a feature of establishment, in that it granted a
privilege to a favored church. An Indiana court in 1820 rebuffed a claim to
benefit of clergy—i.e. to a reduced sentence—by a man convicted of murder, saying: “The benefit of clergy . . . originated with that of sanctuary in
the gloomy days of popery. . . . The statutes of England on the subject are
local to that kingdom . . . and are certainly not adopted as the laws of our
country.”206
But rejecting benefit of clergy as an incident of establishment does not
mean rejecting most modern accommodations, for there are multiple differences between the two. First, benefit of clergy was for the favored church
(Catholicism in medieval Europe, Anglicanism in Tudor England).207 Second, it shielded wrongdoers from state jurisdiction even when there was no
particularized conflict between the law in question and the demands of faith.
Neither clerics nor the church presented a conscientious claim to be able to
engage in assault, rape, or theft. Rather, the conflict was between the
church’s jurisdiction and the civil court’s; and the church’s near-absolute position—“You have no jurisdiction over us”—is unsustainable in the American context. When a religious actor’s conduct harms third parties,
accommodation may still sometimes be appropriate (as I’ve argued in this
Article); but the civil authorities must have the final call on how far regulation may go.
Finally, benefit of clergy limited civil power even over serious, direct
harms: murder, rape, theft.208 No one argues today that religious freedom
blocks the government from acting against such basic harms. The issues concern laws that reflect the far more extensive aims of the post-New Deal state.
Thus, any analogy to benefit of clergy merely returns to the question to what
extent religious accommodation sets limits on the regulatory-welfare state
when it affects the countervailing interest in free exercise of religion. Again,
the proper balance between these two means recognizing government’s ex16–23 (describing the expansion of “clergyable persons” from clerics—often distinguished by their ability to read—to laypersons who could read, to peers, and to women);
PLUCKNETT, supra note 201, at 441 (“[T]he survival of [benefit of] clergy greatly modified the harshness of the penal law and permitted the growth of a graduated scale of
punishment.”).
205
DALZELL, supra note 201, at 18 (“Trevelyan suggests that the Tudor legislation
was an incident of the nationalization of England under their rule. The church was subordinated to the crown. Benefit of clergy was a relic of a rival power obtruding into the
administration of national justice and defeating it at its climax, the sentence. Accordingly,
it was curtailed.”).
206
Id. at 238 (citing Fuller v. State, 1 Blackf. 66 (Ind. 1820)).
207
See id. at 19 (noting that after the Reformation, “[English]-born Catholic priests
returning from abroad . . . were hanged without benefit of clergy” unless they took “an
oath [renouncing papal loyalty] to which they could not possible subscribe”).
208
See authorities cited supra in notes 201–03.
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panded power—but not simply deferring to whatever the government defines or asserts as a harm.209
3. Deference to Legislative Judgments
Finally, when the question is whether a statutory accommodation is permissible, the policy of deference to legislative judgments now cuts in favor
of the accommodation. If we presume that modern regulators have leeway to
define legal harms in order to balance competing interests, then surely they
should have leeway to protect religious freedom along with other statutory
interests. It would make little sense, for example, to say that a state that
recognized same-sex marriage could not simultaneously exempt the small
wedding photographer, in order to balance the two rights. Why is it any
different if the legislature responds to a court decision ordering same-sex
marriage than if the legislature enacts the accommodation at the time it recognizes marriage legislatively?
Court review of the balance struck in a legislative accommodation
should not be stringent. As Michael McConnell has observed, “when legislatures adjust the benefits and burdens of economic life among the citizens,
they regularly impose more than a de minimis burden for the purpose of
protecting important interests of the beneficiary class”: consider, for example, the duty of reasonable accommodation of disabilities.210 “The legislature
should have as much latitude to protect the exercise of religion that it has to
protect other important values in life.”211 Moreover, because “[a]ny comparison of benefits and burdens will admittedly suffer the problem of comparing apples and oranges,” the analysis cannot be highly rigorous: “The
courts should be satisfied if they have examined the legislative accommodation and determined that the burden on nonbeneficiaries is not obviously
disproportionate. Deference to legislative judgment is appropriate here; secular economic interests are not under-represented in the political process.”212
IV. SUMMARY: HOW ACCOMMODATION DIFFERS
FROM
Lochner
To recap this Article’s theme that religious accommodation serves a valuable function in the welfare-regulatory state, I summarize how religious
accommodation differs from the liberty of contract regime of Lochner v.
New York.213 Claims have appeared, both in scholarship and in popular ve209
Interestingly enough, the three features of medieval benefit of clergy—denominational favoritism, no particularized burden removed, and no consideration of serious direct harms to others—are the indicia in the Cutter test for an impermissible
accommodation. Cutter v. Wilkinson, 544 U.S. 709, 717–18 (2005).
210
McConnell, supra note 10, at 704.
211
Id.
212
Id. at 705.
213
198 U.S. 45 (1905).
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nues, that Hobby Lobby reflects the discredited approaches of Lochner that
were discarded after 1937. Elizabeth Sepper calls the claims upheld in
Hobby Lobby “Free Exercise Lochnerism.”214 Akhil Amar, among other observers, referred to Hobby Lobby—along with other business-protective decisions of the Roberts Court—as “the new Lochner.” 215
These claims are overstated against Hobby Lobby, and they certainly do
not undercut the legitimacy and importance of religious accommodation in
general. The multiple differences between accommodation and the discredited aspects of Lochner can be sorted into three categories, reiterating points
I’ve made earlier.
A. Accommodation as an Incremental Exception to Regulation
First, religious accommodation does not interfere nearly as greatly with
regulation as Lochner did. As has already been emphasized, accommodation
does not undo legislation in toto and put the subject beyond government’s
power; rather, it leaves the legislation in place as to the vast majority of
applications and simply requires an exception in certain cases for the countervailing interest of religious freedom.216
The strength of this point, of course, depends on how broad the scope
of religious accommodation turns out to be. But, as I’ve argued, in the forprofit sphere, accommodation should not be too broad: although Hobby
Lobby is correct that for-profit businesses should be able to assert claims, it
is also correct in approaching the scope of their accommodations cautiously.217 And the analogies to Lochner, by the critics’ own terms, apply
almost solely to the for-profit sphere.218 Accommodation should be broader
for religious non-profit organizations, but accommodating those organizations does not present an analogy to Lochner. For reasons already discussed,
religious organizations are different because (even after Hobby Lobby) they
lie closer to the core of religious activity and because they have less of an
effect on the general marketplace.219
B. Accommodation’s Textual Legitimacy (Constitutional and Statutory)
Religious accommodation also has a textual legitimacy that Lochner
lacked, in two senses. First, while Lochner rested on at least partially dis214
Elizabeth Sepper, Free Exercise Lochnerism (June 3, 2014) (unpublished manuscript) (on file with the Harvard Journal of Law and Gender).
215
See Nina Totenberg, Rare Unanimity in Supreme Court Term, With Plenty of Fireworks, NAT’L PUB. RADIO (July 6, 2014), http://www.npr.org/2014/07/06/329235293/
rare-unanimity-in-supreme-court-term-with-plenty-of-fireworks, archived at http://
perma.cc/R4MJ-UJJ3.
216
See supra notes, 91–94 and accompanying text.
217
See supra Parts II.B, III.A.3.
218
See, e.g., Totenberg, supra note 215.
219
See supra Parts II.B, III.A.3.
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credited notions of implied constitutional rights (the substantive due process
liberty of contract), religious accommodation—as noted earlier—enforces
the textually explicit right of free exercise of religion, one of the personal
rights to which the Court turned its attention after 1937.220
Second, in many cases religious accommodation now rests on statutory
directives, under RFRA, its state counterparts, RLUIPA, or context-specific
statutory provisions. As Eugene Volokh has emphasized, the statutory
grounding of accommodation reduces objections to it, compared with constitutionally mandated accommodations, by allowing the legislature to reverse
judicial rulings that, in its view, push accommodation too far.221 In particular, while Volokh believes that constitutionally mandated religious exemptions raise the same problem as Lochner—because both rulings claim “[t]he
power to define, as a final, constitutional matter, the limits of another’s lawful private rights or to decide what constitutes an unjustified externality”222—he does not see the same problem with a regime of federal and state
RFRAs. Under a RFRA, the courts can determine in the first instance what
constitutes a sufficient or cognizable harm to others. But “if [Congress or
the state legislature] disagrees, either immediately or after looking at the
results of several years of this experiment, it can reverse this judgment and
prevent what it concludes is harm to others.”223 Any Lochner-like problems
involved in drawing lines, both as to what constitutes a direct “private right”
of others and as to what will cause serious harms later, are significantly
reduced by giving the legislature the final word.
C. The Qualified Use of Market Logic in Accommodation
Finally, accommodations have been criticized as “Lochnerism” because they sometimes rely on market mechanisms to reduce or eliminate,
assertedly, the harm to others from the accommodation in question. As already noted, a common argument in favor of religious accommodations for
certain service providers is that there are ample alternative providers. For
example, a major reason for exempting Catholic Charities adoption agencies
from anti-discrimination rules when they conscientiously decline to place
children with same-sex couples is that there are numerous other agencies
willing to do the placements. And a major argument for exempting a few
small landlords from having to rent to unmarried cohabiting couples is that
the vast majority of other landlords, large and small, are willing to rent.
Meaningful accommodation relies on market dynamics in its balancing between religious liberty and the interests of others or society. Indeed, one
could argue for presumptive accommodation on the ground that, while a
220
See supra notes 29–30, and accompanying text.
Volokh, A Common-Law Model, supra note 134, at 1479–83, 1521–29.
Id. at 1521.
223
Id. at 1529.
221
222
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legal restriction usually leaves the religious objector no alternative but to
comply, the objector himself wields only private power. Often, others can
avoid that power by taking their labor or their patronage elsewhere.
To accept that logic unqualifiedly would conflict with the premises of
modern regulation. Since the New Deal, Americans have accepted on balance that some regulations overriding market decisions can promote liberty
and equality and prevent unacceptable impositions of private power. Thus,
Cass Sunstein’s influential critique of the Lochner era emphasizes that under
that jurisprudence, “[m]arket ordering under the common law was understood to be a part of nature rather than a legal construct, and it formed the
baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship.”224 The lesson from the New Deal shift, Sunstein says, is that market
ordering “is not prepolitical; [Lochner’s] conception of the function of the
state has been repudiated by the political branches of government, and for
good reasons.”225 The New Deal Court in West Coast Hotel v. Parrish stated
that “the exploiting of workers at [low] wages” produced a subsidy for
employers from the public (who would have to care for those workers).226 In
this passage, Sunstein says, the Court shifted the baseline for analysis from
market ordering to “a system in which all workers had a living wage.”227
Elizabeth Sepper has applied this criticism to Hobby Lobby, arguing that the
employers’ religious claim there took the previous legal state—with no
broad federal requirement concerning employees’ insurance benefits—as
natural and ignored the imbalance of powers between employers and
employees.228
But religious accommodation does not treat market logic like this as
natural, pre-political, or unqualified. Instead it makes use of this logic, in a
limited way, to serve the purpose of accommodation: making reasonable
room for people of fundamentally differing views to follow their identities in
cases of conflict.
It is sensible to rely in some part on the workings of markets to achieve
accommodation’s purpose. The Constitution’s Religion Clauses themselves
rest on, and preserve, a private market on religion: the Constitution forbids
the government from making demands on citizens in matters of religion and
discriminating on the basis of religion, but private religious entities are permitted to do those very things. They are permitted to select their ministers
and other employees on the basis of religion; such powers, indeed, frequently lie at the core of religious freedom. And more generally, markets do
serve as a means by which people of fundamentally conflicting views and
224
Cass R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873, 874 (1987).
Id. at 904.
226
301 U.S. 379, 399 (1937).
227
Sunstein, supra note 224, at 881 (quoting Parrish, 301 U.S. at 399).
228
Sepper, supra note 214.
225
R
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identities can live together in a society. A competitive, non-concentrated
market allows room for individuals to pursue differing, even conflicting,
projects without impeding or coercing each other. The minister who has
come to disagree with his congregation or denomination can seek to serve
elsewhere. More controversially, but at least arguably, the wedding photographer or small landlord should be protected as well when the client couple
can easily seek the next provider in the directory. Markets unquestionably
can play an important role, not just in increasing production or allocative
efficiency, and not just in promoting economic freedom, but in promoting
personal freedom as well.
But these market-based arguments are constrained in accommodation
analysis, and they are only one component of it: other factors matter as well.
Again, for-profit accommodations are more limited; the presence of market
alternatives by no means guarantees a for-profit exemption even under a
RFRA-type analysis. For example, even the Massachusetts case that expressed openness to exempting landlords only contemplated doing so for
those with very few units.229 If a commercial provider’s claim for exemption
from anti-discrimination law is viable, it is not just because of market alternatives, but also because the provider is sufficiently small, and sufficiently
directly connected to the services, that providing them is a personal extension of the provider.
CONCLUSION
In short—and to reiterate—religious accommodation does not simply
adopt market logic. It does not reject the logic of regulation. It simply places
limits on regulatory logic in order to protect the important countervailing
right of free exercise of religion. As such, religious accommodation plays an
important and valuable role in the regulatory State.
229
Attorney Gen. v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994).
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